Crimes » International Criminal Court

The International Crimes Tribunal in Bangladesh – Will Justice Prevail?

Jessica Chen — Wed, 15 Jun 2011 04:47:57 +0000

Located near Dhaka, this monument is dedicated to the lives lost during the War of Independence from Pakistan in 1971. (Photo courtesy Rasekh Fatmi via flickr)

By Kristine A. Huskey

Almost 40 years later, the people of Bangladesh will finally see justice done for war crimes and other atrocities committed during the 1971 War of Liberation. Or will they? The International Crimes Tribunal (ICT) of Bangladesh, which just in the last year began gearing up to try individuals accused of war crimes, crimes against humanity, genocide, mass rape and other international crimes, is certainly necessary to provide accountability and to address longstanding cries of impunity for the alleged criminals.

At the heart of Rapp’s interest … is the perceived need to have the laws and procedures of the ICT consistent or, at least up to par, with the standards of international law.

However, there has also been sharp criticism of the ICT’s statutes, rules of procedure, and practices, as well as deep concern over a related amendment to the Bangladesh Constitution. Critics have pointed specifically to the lengthy pre-charge detention of suspects, interrogation without counsel present, inability to challenge the jurisdiction of the tribunal or make interlocutory appeals, lack of presumption of innocence, potential for self-incrimination, lack of protections for witnesses and victims, and overall lack of due process rights for defendants as just a few of the numerous infirmities present in the ICT. Further, many have characterized the Tribunal as politically motivated, adding to an atmosphere in Bangladesh that is already fraught with political tension.

Justice can only be done for the victims, their families, and the perpetrators, if the Tribunal is fair and is seen as being fair by the people of Bangladesh and the international community, of which Bangladesh is a key participant as the first nation in South Asia to become a state party to the Rome Statute (for the International Criminal Court) and a signatory to the International Covenant on Civil and Political Rights (ICCPR). Perhaps in the spirit of that participation, the Bangladesh government recently invited the United States Ambassador-at-Large for War Crimes Issues, Stephen Rapp, to come to Dhaka. The Foreign Secretary, Mohamed Mijarul Quayes, invited Rapp to ensure the “fullest credibility” in the tribunal process. In anticipation of the visit, Quayes reportedly stated, “There are two things we want from this process: For it to be transparent and consistent with international standards.” “We hope these consultations will help,” he said. Since then, Rapp has visited Dhaka twice and, in March, submitted to the Bangladesh government a 10-page letter setting forth a number of concerns and recommendations. At the heart of Rapp’s interest, like other international concern, is the perceived need to have the laws and procedures of the ICT consistent, or at least up to par, with the standards of international law and procedures of well-respected international crimes tribunals, such as the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC). Bangladesh now has a unique opportunity to have trials in its domestic court for international crimes of the most heinous nature. Trials of such importance should be fair and consistent with international standards and, more importantly, they must be, for justice to prevail.

A Brief History

As set out in more detail in an earlier article published by The Crimes of War Project and in a briefing by the International Center for Transitional Justice , the International Crimes Tribunal was established in 1973 to address crimes that had been committed during the 1971 War of Liberation in which East Pakistan seceded from West Pakistan, ultimately becoming the independent state of Bangladesh. The armed conflict arose out of increasing discontent in the East and a national election won by Bengali nationalist leader, Sheikh Mujib. The fighting began in March 1971, when West Pakistan launched “Operation Searchlight” against the Bengalese population in East Pakistan to quell nationalistic tendencies and ended ten months later when India invaded Pakistan and defeated the Pakistani forces in a matter of days. Bangladesh declared its independence shortly thereafter and Sheikh Mujib became the new country’s first prime minister.

Though no systematic accounting was ever done, popularly-accepted figures within Bangladesh and reported in many external sources are that up to 3 million people were killed or tortured to death, 200,000 women were raped in organized camps with a great number subjected to forced pregnancy, and more than 10 million people were forced to flee to India.

The 1971 Liberation War is considered to be one of the most severe humanitarian crises of the modern century, involving widely-documented massacres, torture, displacement, destruction and confiscation of property, disappearances, and sexual violence. Though no systematic accounting was ever done, popularly-accepted figures within Bangladesh and reported in many external sources are that up to 3 million people were killed or tortured to death, 200,000 women were raped in organized camps with a great number subjected to forced pregnancy, and more than 10 million people were forced to flee to India.

In response, the International Crimes (Tribunals) Act (ICTA) was passed in 1973 “to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes, and other crimes under international law.” At the time, the ICTA was a significant contribution to the development of international criminal law. However, several legislative and/or executive orders effectively halted the trials and granted immunity to certain select groups. The Bangladesh National Liberation Struggle (Indemnity) Order issued in 1973 gave immunity to all “freedom fighters” in connection with the struggle for liberation. Then, Prime Minister Mujib declared a general amnesty for all Bangladesh citizens who had collaborated with West Pakistan except those accused of murder, rape, arson, or genocide. Later, Pakistani soldier prisoners of war, including those who had committed war crimes, were repatriated to Pakistan without ever being charged. And, in 1975, individuals who had been tried and convicted under the Collaborators Order were pardoned and the Order repealed. The ICTA, however, was never repealed and currently stands as a mechanism with which to prosecute Bangladeshi citizens who were not previously given immunity, for international crimes committed forty years ago.

The ICT lay virtually inactive until 2008 when current Prime Minister Sheik Hasina ran on a campaign to prosecute “the war criminals” from the Liberation War. After her victory and with the Awami League in power, Parliament passed a resolution in early 2009 for speedy trials under the ICTA, which was marginally amended later in the year. In mid-2010, the Tribunal issued its Rules of Procedure (ROP) and within a short time, six individuals had been arrested and detained by the authority of the Tribunal, though no charges have been brought to date.

The International Community Voices Its Concerns

Well before U.S. Ambassador Rapp entered the debate, the international human rights and humanitarian law community had already expressed concern about the ICT, claiming that the rules lacked adequate protections for the defendants and witnesses, a related constitutional amendment was fundamentally unfair, and the trials were politically motivated. Organizations, such as the War Crimes Committee of the International Bar Association, Human Rights Watch, and the International Center for Transitional Justice, have all separately submitted to the Bangladesh government letters of concern and recommendations regarding the ICT. While the government has not rejected such recommendations outright, it has not publicly responded quite as positively to such suggestions as it has to Rapp’s participation, perhaps for obvious reasons.

Rapp was welcomed in Dhaka by the Bangladesh government twice this year, giving the U.S. dignitary the opportunity to meet with Tribunal judges, the registrar, investigators, prosecuting counsel and defense counsel and to visit the Liberation War Museum. Rapp also met with the Foreign Minister, the Law Minister, and the Foreign Secretary, as well as representatives from the Bangladesh Supreme Court Bar. His visits are of keen interest as they are the first high-level international “intervention” in the ICT. More importantly, Ambassador Rapp brings a valuable experience and perspective on war crimes issues as the former lead prosecutor at the International Criminal Tribunal for Rwanda and the Special Court in Sierra Leone, which prosecuted Charles Taylor. After his first visit, Rapp memorialized his concerns and recommendations in a letter to the Bangladesh government and has since followed up with a second visit to Dhaka in early May. As discussed in more detail below, Rapp’s concerns, like others’, include issues such as pre-trial detention, disclosure of evidence, time and facilities necessary for the defense, protection of victims and witnesses, and the right to raise legal challenges.

Issues of Concern

As a preliminary matter, one must wonder why Rapp and the international community are so exceptionally concerned with what goes on in Bangladesh’s domestic courts and why the Bangladesh government has shown to be at all receptive to outside “intervention.” After all, the victims and the alleged perpetrators are Bangladesh citizens, the majority of crimes occurred in Bangladesh (or what was East Pakistan at the time), and the trials and post-conviction incarceration will occur in Bangladesh courts and prisons. Moreover, as noted by the International Crimes Strategy Forum (ICSF), “the legitimacy of the International Crimes (Tribunals) Act is dependent not upon any international instrument of law, irrespective of Bangladesh being or not being a party to it, but on an overwhelming decision of the Bangladesh Parliament, a democratically elected body of representatives constitutionally mandated to enact legislation. As such, the ICT can only be interpreted in light of the framework set by ICTA and not any other legal instruments of international nature.” However, as Rapp has pointed out, the ICT was established specifically to prosecute international crimes, such as genocide and war crimes, which are crimes defined under international law and recognized as violations of international law. Despite the fact that the ICT proceedings will occur in domestic courts pursuant to domestic statute, there is justifiable interest in seeing that “international law” is followed according to international standards. Since the promulgation of the 1973 Act, there has been considerable development in international criminal law and much can be gained by looking at other international crimes tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY), the ITCR, the Special Court of Sierra Leone and the ICC. Finally, as a signatory to the ICCPR, Bangladesh is obligated at all times to honor the treaty, but most especially when it purports to be enforcing international law.

Fundamental Rights Under the Constitution

The ICT was established specifically to prosecute international crimes, such as genocide and war crimes. Despite the fact that the ICT proceedings will occur in domestic courts pursuant to domestic statute, there is justifiable interest in seeing that “international law” is followed according to international standards.

By far, the most troubling concern is that related to the constitutional amendments (Articles 47(3) and 47A), which deny a number of constitutional protections to Bangladesh citizens who are being detained or prosecuted under the ICTA. For example, Article 47(3) prohibits such individuals from challenging any law, including the amendments themselves, on the ground that it is unconstitutional. Article 47A further strips those individuals of specific constitutional rights that are guaranteed to all other persons in Bangladesh, such as the right to protection of the law (Art. 31), protection from ex post facto (retroactive) laws and the right to a speedy and public trial (Art. 33), and the ability to enforce guaranteed rights (Art. 44). These are fundamental due process rights and are guaranteed in international law and to all other suspected criminals in Bangladesh. Withholding such rights from suspected war criminals who have not even been convicted does not engender faith in the fairness of the process or outcome.

Rights of the Accused

There are a number of worrisome provisions in the ICT Act and the Rules of Procedure (ROP) and practices of the Tribunal, all of which have been set forth and discussed in detail, with specific reference to other tribunals’ rules and procedures for point of comparison, in Rapp’s letter and letters by the aforementioned international organizations. The following are some of the many concerns going to provisions affecting the rights of the accused:

• Individuals can be arrested and questioned before formal charges are brought and they can only challenge their detention once and have no right of appeal. Currently, at least five individuals have been in detention for over six months, some as long as ten or more months, with no possibility of release until post-conviction, having already lost their initial applications for bail.

• The rules also allow for the interrogation of the (informally) accused without counsel present and there is no procedure for informing a questioned individual of their privileges or rights or that they are entitled to counsel. Already, several detainees have been interrogated without counsel present based on the prosecution’s request to the Tribunal and during the interrogations, which lasted all day, the detainees were denied the opportunity to have private conversations with their counsel during breaks and were prohibited from discussing the interrogations with counsel altogether. Further, there has been no investigation into claims of torture and abuse of individuals in detention.

• There is no procedure for challenging the jurisdiction of the Tribunal or making constitutional challenges to the ICT Act or Rules of Procedure.

• There is no requirement that the prosecution disclose exculpatory evidence (“unused evidence”) to defendants or their counsel, nor are there any provisions that enable a defendant to request discovery. Additionally, the prosecution is only required to disclose the evidence upon which it will rely three weeks in advance of the trial to the Tribunal and does not specifically require disclosure to defendants or their counsel.

• The Act specifically provides that the Bangladesh Evidence Act and the Code of Criminal Procedure, both of which apply in all criminal proceedings in Bangladesh domestic courts, do not apply to proceedings under the ICTA. Further, the Act provides that “the Tribunal shall not be bound by the technical rules of evidence”

• Though the burden of proof is on the prosecution, there is no presumption of innocence. Additionally, the burden of proof is reversed to the defendant in an alibi defense.

It could be argued that some of these inadequacies, standing alone, are not enough to evince a lack of due process. However, allowing all of them in the same proceeding and together with the constitutional amendments, which deny fundamental protections to the defendants, the ICT, as it now stands, falls far short of the international standards of due process that are evident in the rules and procedures in the ICTY, ITCR and the ICC. Moreover, the ICT rules and procedures together with the constitutional amendments clearly violate the guarantees under Article 14 of the ICCPR, which Bangladesh ratified in 2000. In short, Bangladesh would be violating its international law obligations were the ICT to proceed without modification.

Motions and Appeals

There is no appellate chamber within the ICT and the ROP only allow for appeal on matters of law to the Appellate Division of the Supreme Court after the conviction of an accused. There are no procedures that allow both parties to file motions for appropriate rulings and relief and to seek interlocutory appeal of key adverse decisions. Allowing parties to appeal decisions on evidence and other significant issues during the course of the trial, particularly given the complexity of international crimes, is more efficient and fair and avoids waiting until an acquittal or conviction in the event error occurs during trial.

Neutrality and Equality of Arms

While an estimated 1,600 people took part in the atrocities, it is clear that the Tribunal will not be prosecuting soldiers in the Pakistani army or the Bengali freedom fighters. Instead, the government appears to be targeting only Bangladeshi citizens accused of collaborating with West Pakistan and committing certain crimes. Five of the seven alleged collaborators are members of the Jamaat-e-Islami party, Bangladesh’s biggest Islamic party and a partner in the main opposition alliance against the Awami League, the controlling party. The other two accused are from another opposition party, Bangladesh National Party (BNP). This has led to criticism that the Tribunal is merely a vehicle to repress political opposition. To exacerbate the problem, there is no process in the ICTA or ROP to challenge the Tribunal judges.

Caitlin Reiger (lt.), Ambassador Stephen Rapp, Kristine Huskey and John Cammegh on the ASIL panel

“Equality of arms” is a fundamental component of a fair trial as every party must have the opportunity to present their case under conditions that do not place either party at a substantial disadvantage. Accordingly, the Tribunal could enhance both the fairness of the process and the perception of fairness by establishing a “Defense Office,” which could play an important role in protecting the rights of the accused by ensuring that defense counsel have adequate support to prepare and present cases and by providing training on investigative techniques and access to jurisprudence and developments in international criminal law. Further, a Defense Office could maintain a list of qualified lawyers who can be assigned to a defendant in the event he cannot afford legal counsel. Cases involving allegations of war crimes, crimes against humanity and genocide are already complex and the crimes here date back decades. It is important for a fair and just outcome that the attorneys for both sides have the knowledge, the expertise and the ability to effectively bring their case or defend their clients.

Protection of Witnesses

The ICTA does not contain any provisions for the protection of witnesses whose testimony may be necessary in the trials. It is the experience of other international crimes tribunals, particularly those involving war crimes and genocide, that witnesses have legitimate concerns about being subjected to intimidation, threats and actual violence to keep them from testifying. The ability to ensure the attendance and safety of witnesses is an essential component of a successfully functioning tribunal process. Accordingly, at a minimum, there should be resources and a process in place to protect witnesses, victims and family members before, during and after court appearances, and provide secure transportation to and from the court, as well as address the protection of personal information in a manner that will not deny the right of defendants to see the evidence against them.

Will Justice Prevail?

Just a few weeks after Rapp’s second visit to Bangladesh, he spoke at a briefing on the International Crimes Tribunal of Bangladesh, which was sponsored by the American Society for International Law (ASIL), the Center for Human Rights & Humanitarian Law at American University’s Washington College of Law, and The Crimes of War Education Project. During the discussion, Ambassador Rapp made clear he would be returning to Bangladesh to continue his involvement and to provide assistance to the ICT. Interestingly, at the end of the briefing, Bangladesh’s top diplomat to the U.S., Ambassador Akramul Qader, passionately defended the Bangladesh justice system and Parliament, taking the opportunity to point out that nobody on the ASIL panel was from Bangladesh, resulting in a “one side of the fence” discussion.

Perhaps mirroring the political tension in Dhaka over the ICT, several Bangladesh citizens were quick to respond, including Zakir Hafez, an international law professor in the School of International Service at American University, who remarked that everyone in Bangladesh wants to see the perpetrators prosecuted, but he could not see “truth and independent justice” in the composition of the Tribunal judges or its rules. Professor Hafez then summed up one reason why it is important that the ICT be fair: “If the Tribunal is not in accordance with international justice and the rule of law, it will not be a good legacy for Bangladesh.” As for why the ICT matters beyond Bangladesh, Retired U.S. Air Force Colonel Morris Davis concluded the briefing with the compelling and poignant remark, “I can tell you as a career military officer that war is hell. The law of war makes it a little less hellish and as this Tribunal contributes to that body of law – international humanitarian law and the law of war — every little bit contributes to that body of law and it is important, to all of us.”

It remains to be seen whether pressure from the U.S. or other international sources or internal outcry will bring about any changes to the ICT statute or rules of procedure, or the Bangladesh Constitution and, thus, whether justice will finally prevail in Bangladesh.

Kristine A. Huskey is an attorney and consultant on matters of national security law and policy and international humanitarian and human rights law, an adjunct professor at Georgetown Law School, and a Fellow at the Robert S. Strauss Center for International Security and Law. She has taught national security law and international humanitarian and human rights law at the University of Texas School of Law, George Washington University Law School, Washington College of Law at American University, and Victoria University Law School in Wellington, New Zealand.

Bangladesh War Crimes Tribunal Blog
By David Bergman

International Crimes Strategy Forum
1971 Bangladesh Justice

Press Release and Letter from Human Rights Watch to Prime Minister Sheikh Hasina
May 18, 2011

Summary of Crimes – International Criminal Court

Morris — Tue, 21 Mar 2000 15:45:48 +0000

The most comprehensive and accepted list of international humanitarian law offenses is set out in the Rome Statute governing the International Criminal Court (ICC) at the Hague. Offenses within the ICC’s jurisdiction fall within three categories: genocide, crimes against humanity, and war crimes. War crimes are further dividied among four sub-catagories based primarily on the nature of the armed conflict: grave breaches of the Geneva Conventions, serious violations of the laws and customs of war applicable in an international armed conflict, serious violations of Common Article 3 of the Geneva Conventions in a conflict not of an international character, and serious violations of the laws and customs of war applicable in a conflict not of an international character. Set forth below is a brief description of each offense punishible at the ICC.

(See the ICC website for additional information)

I. Genocide

Genocide by killing. Killing one or more persons of a particular national, ethnic, racial, or religious group with the intent, in whole or in part, to destroy that group.

Genocide by causing serious bodily or mental harm. Causing serious bodily or mental harm to one or more persons of a particular national, ethnic, racial, or religious group with the intent, in whole or in part, to destroy that group.

Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction. Inflicting certain conditions of life on one or more persons of a particular national, ethnic, racial, or religious group calculated, in whole or in part, to bring about the physical destruction of that group.

Genocide by imposing measures intended to prevent births. Imposing certain measures upon one or more persons of a particular national, ethnic, racial, or religious group intended to prevent births within that group and with the intent, in whole or in part, to destroy that group.

Genocide by forcibly transferring children. Forcibly transferring one or more persons under the age of 18 years of a particular national, ethnic, racial, or religious group to another group with the intent, in whole or in part, to destroy that group.

II. Crimes Against Humanity

Crime against humanity of murder. Killing one or more persons as part of a widespread or systematic attack directed against a civilian population.

Crime against humanity of extermination. Killing one or more persons as part of a mass killing of members of a civilian population.

Crime against humanity of enslavement. Exercising the power attaching to the right of ownership over one or more persons or imposing similar deprivations of liberty as part of a widespread or systematic attack against a civilian population.

Crime against humanity of deportation or forcible transfer of population. Deporting or forcibly transferring, without grounds permitted under international law, one or more persons lawfully present in the area to another location by expulsion or other coercive acts as part of a widespread or systematic attack against a civilian population.

Crime against humanity of imprisonment or other severe deprivation of physical liberty. Imprisoning or otherwise depriving one or more persons of physical liberty under circumstance where the gravity of the conduct is in violation of fundamental rules of international law and committed as part of a widespread or systematic attack against a civilian population.

Crime against humanity of torture. Inflicting severe physical or mental pain or suffering without lawful sanctions upon one or more person under the control of the perpetrator as part of a widespread or systematic attack directed against a civilian population.

Crime against humanity of rape. Penetrating the body of the victim or the perpetrator, however slight, with a sexual organ, or of the anal or genital opening of the victim with any object or body part, by force or threat of force or coercion, or against a person incapable of giving consent, as part of a widespread or systematic attack directed against a civilian population.

Crime against humanity of sexual slavery. Exercising the power attaching to the right of ownership over one or more persons or imposing similar deprivations of liberty, and causing such person or person to engage in one or more acts of a sexual nature as part of a widespread or systematic attack against a civilian population.

Crime against humanity of enforced prostitution. Causing one or more persons to engage in one or more acts of a sexual nature by force, threat of force, coercion, or by taking advantage of the inability to give genuine consent, with an expectation of obtaining a financial or other advantage in exchange for the acts of a sexual nature and conducted as part of a widespread or systematic attack against a civilian population.

Crime against humanity of forced pregnancy. Confining one or more women forced to become pregnant with the intent of affecting the ethnic composition of a population as part of a widespread or systematic attack directed against a civilian population.

Crime against humanity of enforced sterilization. Depriving one or more persons of biological reproductive capacity when it is neither justified for medical treatment nor carried out with consent as part of a widespread or systematic attack directed against a civilian population.

Crime against humanity of sexual violence. Committing a grave act of a sexual nature against one or more persons, or causing such person or persons to engage in an act of a sexual nature by force, threat of forces, coercion, or incapacity to give consent, as part of a widespread or systematic attack directed against a civilian population.

Crime against humanity of persecution. Severely depriving one or more persons of fundamental rights, contrary to international law, based upon political, racial, national, ethnic, cultural, religious, gender or other grounds universally recognized as impermissible under international law as part of a widespread or systematic attack directed against a civilian population.

Crime against humanity of enforced disappearance of persons. Refusing to acknowledge the arrest, detention, or abduction, or to give information about the fate or whereabouts of one or more persons, carried out by or with the acquiescence of a State or a political organization, with the intent to remove such person or persons from the protection of the law for a prolonged period of time as part of a widespread or systematic attack directed against a civilian population.

Crime against humanity of apartheid. Committing an inhumane act against one or more persons in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups committed as part of a widespread or systematic attack directed against a civilian population.

Crime against humanity of other inhumane acts. Inflicting great suffering or serious injury to the body or to the mental or physical health by means of an inhumane act committed as part of a widespread or systematic attack directed against a civilian population.

III. War Crimes

a. Grave Breaches of the Geneva Conventions

War crime of willful killing. Killing one or more persons protected under one or more of the Geneva Conventions of 1949, such conduct taking place in the context of an international armed conflict.

War crime of torture. Inflicting severe physical or mental pain or suffering upon one or more persons protected under one or more of the Geneva Conventions of 1949 for purposes of obtaining information or a confession, punishment, intimidation or coercion, or for any reason based on discrimination, such conduct taking place in the context of an international armed conflict.

War crime of inhuman treatment. Inflicting severe physical or mental pain or suffering upon one or more persons protected under one or more of the Geneva Conventions of 1949, such conduct taking place in the context of an international armed conflict.

War crime of biological experiments. Subjecting one or more persons protected under one or more of the Geneva Conventions of 1949 to biological experiments that seriously endangers the physical or mental health of such person or persons, such conduct taking place in the context of an international armed conflict.

War crime of willfully causing great suffering. Inflicting severe physical or mental pain or suffering upon one or more persons protected under one or more of the Geneva Conventions of 1949, such conduct taking place in the context of an international armed conflict.

War crime of destruction and appropriation of property. Destroying or appropriating property protected under one or more of the Geneva Conventions of 1949 under circumstances where the destruction or appropriation is not justified by military necessity, such conduct taking place in the context of an international armed conflict.

War crime of compelling service in hostile forces. Coercing one or more persons protected under one or more of the Geneva Conventions of 1949 to take part in military operations against the person’s own country or forces or to otherwise serve in the forces of the hostile power, such conduct taking place in the context of an international armed conflict.

War crime of denying a fair trial. Depriving one or more persons protected under one or more of the Geneva Conventions of 1949 of a fair trial by denying the judicial guarantees as defined, in particular, in the third and fourth Geneva Conventions, such conduct taking place in the context of an international armed conflict.

War crime of unlawful deportation and transfer. Deporting or transferring one or more persons protected under one or more of the Geneva Conventions of 1949 to another State or location, such conduct taking place in the context of an international armed conflict.

War crime of unlawful confinement. Confining one or more persons protected under one or more of the Geneva Conventions of 1949, such conduct taking place in the context of an international armed conflict.

War crime of taking hostages. Seizing, detaining, or otherwise holding hostage one or more persons protected under the Geneva Conventions of 1949 intending to compel a State, group, or person to act or refrain from acting as a condition for the safety or release of such person or persons, such conduct taking place in the context of an international armed conflict.

B. Serious Violations of the Laws and Customs Applicable in International Armed Conflict

War crime of attacking civilians. Deliberately directing an act, the object of which is a civilian population or individual civilians not taking direct part in hostilities, such conduct taking place in the context of an international armed conflict.

War crime of attacking civilian objects. Deliberately directing an act, the object of which is a civilian objects which are not legitimate military objectives, such conduct taking place in the context of an international armed conflict.

War crime of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission. Deliberately directing an act, the object of which is people, places, or things involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations and entitled to protection under the law of armed conflict, such conduct taking place in the context of an international armed conflict.

War crime of excessive incidental death, injury, or damage. Launching an attack that would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment that would be of such an extent as to be clearly excessive in relation to the overall military advantage anticipated, such conduct taking place in the context of an international armed conflict.

War crime of attacking undefended places. Attacking one or more town, villages, dwelling, or buildings that are open for unresisted occupation and did not constitute legitimate military objectives, such conduct taking place in the context of an international armed conflict.

War crime of killing or wounding a person hors de combat. Killing or injuring one or more persons hors de combat (out of combat and therefore protected), such conduct taking place in the context of an international armed conflict.

War crime of improper use of a flag of truce. Knowingly using a flag of truce to feign an intention to negotiate resulting in death or serious personal injury, such conduct taking place in the context of an international armed conflict.

War crime of improper use of a flag, insignia or uniform of the hostile party. Knowingly using a flag, insignia, or uniform of the hostile party in a manner prohibited under the international law of armed conflict resulting in death or serious personal injury, such conduct taking place in the context of an international armed conflict.

War crime of improper use of a flag, insignia or uniform of the United Nations. Knowingly using a flag, insignia, or uniform of the United Nations in a manner prohibited under the international law of armed conflict resulting in death or serious personal injury, such conduct taking place in the context of an international armed conflict.

War crime of improper use of the distinctive emblems of the Geneva Conventions. Knowingly using the distinctive emblems of the Geneva Conventions in a manner prohibited under the international law of armed conflict resulting in death or serious personal injury, such conduct taking place in the context of an international armed conflict.

The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. Moving part of the occupying power’s own population into territory it occupies or deporting or relocating all or part of the population of the occupied territory, such conduct taking place in the context of an international armed conflict.

War crime of attacking protected objects. Directing an attack against one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which are not military objectives, such conduct taking place in the context of an international armed conflict.

War crime of mutilation. Subjecting one or more persons under the power of the perpetrator to disfigurement, or the disabling or removal of an organ or appendage, causing death or seriously endangering the physical or mental health of such person or persons without medical justification, such conduct taking place in the context of an international armed conflict.

War crime of medical or scientific experiments. Subjecting one or more persons under the power of the perpetrator to medical or scientific experiments causing death or seriously endangering the physical or mental health of such person or persons without medical justification, such conduct taking place in the context of an international armed conflict.

War crime of treacherously killing or wounding. Inducing one or more of the adverse party to believe the perpetrator is entitled to the protections afforded under the international law applicable in armed conflict and then betraying that belief resulting in the death or injury of one or more of the adverse party, such conduct taking place in the context of an international armed conflict.

War crime of denying quarter. While in command or control over subordinate forces, declaring that there shall be no survivors in order to threaten an adversary or to conduct hostilities intending there be no survivors, such conduct taking place in the context of an international armed conflict.

War crime of destroying or seizing the enemy’s property. Destroying or seizing property of a hostile party knowing such property is protected under the international law of armed conflict and is not justified by military necessity, such conduct taking place in the context of an international armed conflict.

War crime of depriving the nationals of the hostile power of rights or actions. Abolishing, suspending, or terminating certain rights or actions in a court of law of the national of a hostile party, such conduct taking place in the context of an international armed conflict.

War crime of compelling participation in military operations. Coercing nationals of a hostile party, by acts or threats, to take part in military operations against their own country or forces, such conduct taking place in the context of an international armed conflict.

War crime of pillaging. Appropriating property for personal use without the consent of the owner, such conduct taking place in the context of an international armed conflict.

War crime of employing poison or poisoned weapons. Employing a substance whose toxic properties cause death or serious injury in the ordinary course of events, such conduct taking place in the context of an international armed conflict.

War crime of employing prohibited gases, liquids, materials or devices. Employing a gas or similar substance with asphyxiating or toxic properties that cause death or serious injury in the ordinary course of events, such conduct taking place in the context of an international armed conflict.

War crime of employing prohibited bullets. Employing bullets that violate the international law of armed conflict because they expand or flatten easily in the human body, such conduct taking place in the context of an international armed conflict.

War crime of outrages upon personal dignity. Humiliating, degrading, or otherwise violating the dignity of one or more persons to a degree generally recognized as an outrage on personal dignity, such conduct taking place in the context of an international armed conflict.

War crime of rape. Penetrating the body of the victim or the perpetrator, however slight, with a sexual organ, or of the anal or genital opening of the victim with any object or body part, by force or threat of force or coercion, or against a person incapable of giving consent, such conduct taking place in the context of an international armed conflict.

War crime of sexual slavery. Exercising the power attaching to the right of ownership over one or more persons or imposing similar deprivations of liberty, and causing such person or person to engage in one or more acts of a sexual nature, such conduct taking place in the context of an international armed conflict.

War crime of enforced prostitution. Causing one or more persons to engage in one or more acts of a sexual nature by force, threat of force, coercion, or by taking advantage of the inability to give genuine consent, with an expectation of obtaining a financial or other advantage in exchange for the acts of a sexual nature, such conduct taking place in the context of an international armed conflict.

War crime of forced pregnancy. Confining one or more women forced to become pregnant with the intent of affecting the ethnic composition of a population or carrying out other gave violations of international law, such conduct taking place in the context of an international armed conflict.

War crime of enforced sterilization. Depriving one or more persons of biological reproductive capacity when it is neither justified for medical treatment nor carried out with consent, such conduct taking place in the context of an international armed conflict.

War crime of sexual violence. Committing a grave act of a sexual nature against one or more persons, or causing such person or persons to engage in an act of a sexual nature by force, threat of forces, coercion, or incapacity to give consent, such conduct taking place in the context of an international armed conflict.

War crime of using protected persons as shields. Using one or more civilians or other persons protected under the international law of armed conflict to shield a military objective from attack or impede military operations, such conduct taking place in the context of an international armed conflict.

War crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions. Attacking one or more persons, buildings, medical units or transports, or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions, such conduct taking place in the context of an international armed conflict.

War crime of starvation as a method of warfare. Depriving civilian of objects indispensable to their survival intending to starve them as a method of warfare, such conduct taking place in the context of an international armed conflict.

War crime of using, conscripting or enlisting children. Conscripting one or more persons into the national armed forces or using one or more person in active hostilities where such person is under the age of 15 years, such conduct taking place in the context of an international armed conflict.

C. Serious Violations of Common Article 3 of the Geneva Conventions in Conflicts Not of an International Character

War crime of murder. Killing one or more persons that were hors de combat or civilians, medical personnel, or religious personnel taking no part in the hostilities, such conduct taking place in the context of an armed conflict not of an international character.

War crime of cruel treatment. Inflicting severe physical or mental pain or suffering upon one or more persons either hors de combat or civilians, medical personnel, or religious personnel taking no active part in hostilities, such conduct taking place in the context of an armed conflict not of an international character.

War crime of torture. Inflicting severe physical or mental pain or suffering upon one or more persons either hors de combat or civilians, medical personnel or religious personnel taking no active part in the hostilities for purposes of obtaining information or a confession, punishment, intimidation or coercion, or for any reason based on discrimination, such conduct taking place in the context of an armed conflict not of an international character.

War crime of outrages upon personal dignity. Humiliating, degrading, or otherwise violating the dignity of one or more persons either hors de combat or civilians, medical personnel or religious personnel taking no active part in the hostilities to a degree generally recognized as an outrage on personal dignity, such conduct taking place in the context of an armed conflict not of an international character.

War crime of taking hostages. Seizing, detaining, or otherwise holding hostage one or more persons either hors de combat or civilians, medical personnel or religious personnel taking no active part in the hostilities intending to compel a State, group, or person to act or refrain from acting as a condition for the safety or release of such person or persons, such conduct taking place in the context of an armed conflict not of an international character.

War crime of sentencing or execution without due process. Passing sentence or executing one or more persons either hors de combat or civilians, medical personnel or religious personnel taking no part in hostilities, when there was no previous judgment by a court, or the court that rendered judgment was not ‘regularly constituted’ in that it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgment did not afford all other judicial guarantees generally recognized as indispensable under international law, such conduct taking place in the context of an armed conflict not of an international character.

D. Serious Violations of the Laws and Customs Applicable to Armed Conflicts Not of an International Character

War crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions. Attacking one or more persons, buildings, medical units or transports, or other objects using, in conformity with international law, a distinctive emblem or other means of identifications indicating protection under the Geneva Conventions, such conduct taking place in the context of an armed conflict not of an international character.

War crime of pillaging. Appropriating property for personal use without the consent of the owner, such conduct taking place in the context of an armed conflict not of an international character.

War crime of using, conscripting and enlisting children. Conscripting one or more persons into the national armed forces or using one or more person in active hostilities where such person is under the age of 15 years, such conduct taking place in the context of an armed conflict not of an international character.

War crime of displacing civilians. Ordering the displacement of a civilian population when such order is not justified by legitimate concern for the security of the civilians involved or by military necessity, such conduct taking place in the context of an armed conflict not of an international character.

International vs. Internal Armed Conflict

Morris — Thu, 09 Mar 2000 18:17:27 +0000

By Steven R. Ratner

“The division of world society into national and international is an arbitrary one,” in the words of the political scientist John Burton, but a division nonetheless clung to by much of international humanitarian law.

Because the traditional laws of war—and laws of war crimes—concerned only conflicts between States, States accusing each other of violating them or of committing war crimes needed to characterize a conflict as truly international and not internal. Thus, the Geneva Conventions and Additional Protocol I address in nearly all their aspects international conflicts only. They apply in the event of “declared war or of any other armed conflict [between States] even if the state of war is not recognized by one of them,” as well as “all cases of partial or total occupation of the territory of a [State], even if the said occupation meets with no armed resistance.” The easy cases involve invasion, assault, artillery bombardment, or air raid by one State against another; but the harder cases turn upon the perspectives of the belligerents and States observing the situation.

One such hard case, all too typical these days, is a civil war with foreign involvement or provocation, but without the foreign State’s resort to the classic acts of war. What level of such involvement in a case like Bosnia or Zaire is enough to trigger the Geneva Conventions? International law offers no precise answers to this question. The International Court of Justice has held that a foreign State is responsible for the conduct of a faction in a civil war if (a) the faction is a de facto agent of the foreign State or (b) the foreign State otherwise orders it to commit certain acts. The UN’s Yugoslavia Tribunal held in the Tadic case in 1997 that the de facto agent standard applied to trigger the Geneva Conventions; it went on to find that the Bosnian Serb army in that particular case was not a de facto agent of Serbia, that Serbia was thus not a party to the conflict, and that the conventions did not apply. The International Committee of the Red Cross Commentary to the Geneva Conventions suggests a lower standard, focusing on who had made the decision leading to the illegal acts. The issue remains unresolved.

The legal consequences of characterizing a conflict as solely internal have been quite significant. First, the Geneva Conventions provide only very basic protections in the event of civil wars through Article 3 common to the conventions. That article prohibits certain flagrant violations of human dignity like murder, torture, ill-treatment, and taking of hostages. Second, Additional Protocol II of 1977, which specifically addresses internal conflicts, provides fewer protections during such conflicts than the Geneva Conventions do for international conflicts. Third, for prosecution of war crimes, the conventions create criminal liability only for violations committed in international armed conflicts.

Nevertheless, recent developments have shown the possibility of prosecuting war crimes in internal conflicts without having to find some sort of linkage to an international war, through reliance on special statutes and customary international law. First, the Rwanda Tribunal statute explicitly gives that court jurisdiction over serious violations of Common Article 3 and Additional Protocol II; second, the Yugoslavia Tribunal has interpreted its Statute to allow for jurisdiction over serious violations of Common Article 3 and other serious violations of the laws and customs of war in internal conflicts; and third, the statute of the International Criminal Court specifically provides for criminality over many acts committed in internal conflicts.

Article 3 Common to the Four Geneva Conventions of 1949

Article 3, the text of which is repeated in all four Geneva Conventions, is the only part of the conventions that applies explicitly to internal armed conflicts. It has been called a “treaty in miniature,” and sets forth the minimum protections and standards of conduct to which the State and its armed opponents must adhere. The protections it spells out are at the core of international humanitarian law. Additional Protocol II of 1977 also covers internal armed conflicts, but it is less widely accepted among States than the 1949 Conventions.

Article 3 In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all cases be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth of wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Genocide

Morris — Wed, 08 Mar 2000 20:39:35 +0000

By Diane F. Orentlicher

Invoked with a frequency, familiarity, and reverence rarely associated with instruments of law, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide has come to embody the conscience of humanity. Yet nearly sixty years after it was drafted, the moral promise of the Genocide Convention has at best been only partially redeemed. While States have belatedly honoured their responsibility to punish genocide, they have shown no corresponding will to prevent it, as the treaty also requires.

Although the Genocide Convention envisages (but does not require) the creation of an international court to punish genocide, forty-five years passed before the first international criminal tribunal was established. Its jurisdiction was limited to crimes, including genocide, committed in the former Yugoslavia since 1991. A similar, more circumscribed, tribunal was created for Rwanda one year later. It was not until September 2, 1998—a half-century after the United Nations General Assembly adopted the Genocide Convention — that the first verdict interpreting the convention was rendered by an international tribunal. On that day the Rwanda Tribunal found Jean-Paul Akayesu guilty on nine counts for his role in the 1994 Rwandan genocide.

In 2002, with the launch of the International Criminal Court, the promise of a permanent international tribunal to prosecute those responsible for genocide was finally met. Genocide is one of the crimes over which the Court has jurisdiction, although its prosecutor has yet to publicly indict any defendants on genocide charges.

If States are slowly and belatedly acting to meet their treaty commitment to punish genocide, the same can hardly be said for the parallel obligation the Genocide Convention imposes to prevent the crime or halt its further progress once genocide is under way. When ethnic cleansing was under way in the Balkans, legal experts in the U.S. government were asked, in the words of a former State Department lawyer, “to perform legal gymnastics to avoid calling this genocide.” And as Rwandan Hutu slaughtered hundreds of thousands of Tutsi, the Clinton administration instructed its spokespeople not to describe what was happening as genocide lest this “inflame public calls for action,” according to the New York Times. Instead, the State Department and National Security Council reportedly drafted guidelines instructing government spokespeople to say that “acts of genocide may have occurred” in Rwanda.

Against the Clinton administration’s failure even to call the Rwanda genocide by its name at a time when effective intervention could have saved lives, the administration of George W. Bush forthrightly declared in September 2004 that violence committed by government-supported Arab militias against the black population of Darfur, Sudan, qualified as genocide. Yet the poverty of effective action to stop the violence in Darfur has made it painfully clear that invoking the name “genocide” does not by itself signify a political determination to stop the carnage.

Genocide defined. The definition of genocide set forth in the Genocide Convention is authoritative and has been incorporated verbatim in the statutes of the Yugoslavia and Rwanda tribunals, the International Criminal Court and several other courts established by or with the support of the United Nations. After affirming that genocide is a crime under international law whether committed in time of peace or war, the 1948 convention defines genocide as “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.”

In the 1948 convention, then, the crime of genocide has both a material element—comprising certain enumerated acts, such as killing members of a racial group—and a mental element—those acts must have been committed with the specific intent to destroy, in whole or in part, a national, ethnic, racial, or religious group “as such.” In its verdict in the Akayesu case, the Rwanda Tribunal found that the systematic rape of Tutsi women in Taba Province constituted the genocidal act of “causing serious bodily or mental harm to members of the [targeted] group.”

In addition to the crime of genocide itself, the 1948 convention provides that the following acts shall be punishable: conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide.

What was left out of the convention is as important as what was included. Although earlier drafts of the convention listed political groups among those covered by the intent requirement, this category was omitted during final drafting stages. Some governments, it appears, feared they would be vulnerable to the charge of genocide if deliberate destruction of political groups fell within the crime’s compass.

Also excluded was the concept of cultural genocide—destroying a group through forcible assimilation into the dominant culture. The drafting history makes clear that the 1948 convention was meant to cover physical destruction of a people; the sole echo of efforts to include the notion of cultural extermination is the convention’s reference to forcibly transferring children of a targeted group to another group.

In this and other respects the conventional definition of genocide is narrower than the conception of Polish scholar Raphael Lemkin, who first proposed at an international conference in 1933 that a treaty be created to make attacks on national, religious, and ethnic groups an international crime. Lemkin, who served in the U.S. War Department, fashioned the term genocide from the Greek word genos, meaning race or tribe, and the Latin term for killing, cide.

Although Lemkin’s conception included the physical extermination of targeted groups, this was, in his view, only the most extreme technique of genocide. In his 1944 book, Axis Rule in Occupied Europe, Lemkin proposed that genocide should be understood as signifying “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups…

“Genocide has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain, or upon the territory alone, after removal of the population and colonization of the area by the oppressor’s own nationals.”

Another four years would pass before Lemkin’s crime was recognized in an international treaty, but the legal foundation was laid during the 1945 Nuremberg and other postwar prosecutions. Although the Nuremberg Charter did not use the term genocide, its definition of crimes against humanity overlapped significantly with Lemkin’s conception of genocide. The term “genocide” was used in the indictment against major war criminals tried at Nuremberg, who were accused of having “conducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial or religious groups.” Nuremberg prosecutors also invoked the term in their closing arguments, and it also appeared in the judgments of several U.S. military tribunals operating in Nuremberg.

The comparatively narrow terms of the 1948 convention—in particular, its exclusion of political groups and its restrictive intent requirement—have meant that genocide is a difficult crime to establish. However, a series of decisions by the Yugoslavia and Rwanda war crimes tribunals has helped clarify the treaty’s core terms. The tribunals have said that in the absence of direct evidence, genocidal intent can be inferred from such factors as “the scale of atrocities committed” and “the systematic targeting of victims on account of their membership of a particular group.” These tribunals have also ruled that defendants can be convicted of certain genocide-related charges without themselves intending the destruction of a protected group if, for example, they knowingly and substantially furthered the commission of genocide by those who were bent on the destruction of a targeted group.

Recent case law has also helped clarify when genocidal intent can be established by virtue of a perpetrator’s intent to destroy a protected group “in part.” This requirement is satisfied, in the words of the ICTY Appeals Chamber, “where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group.” Applying this standard in the case of Radislav Krsti´c, who commanded the Bosnian Serb Drina Corps during the infamous Srebrenica massacre of July 1995, an ICTY trial chamber concluded that the intent to destroy the Bosnian Muslims of Srebrenica by killing their men constituted the intent to destroy a substantial part of a national group protected by the Genocide Convention, “the Bosnian Muslims.” The trial chamber reasoned, in part, that “Bosnian Serb forces could not have failed to know, by the time they decided to kill all the men, that this selective destruction of the group would have a lasting impact upon the entire group[; they] had to be aware of the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a traditionally patriarchal society.” Krsti´c was convicted of genocide, though the Court’s Appeals Chamber later reduced this to a conviction for aiding and abetting genocide.

As noted above, the Genocide Convention imposes a general duty on States parties “to prevent and to punish” genocide. Those charged with genocide are to be tried either in the State where the crime occurred or “by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” By early 2006, the Rwanda war crimes tribunal had convicted 24 defendants of genocide or genocide-related charges. By contrast, a small proportion of those indicted by the Yugoslavia tribunal has been convicted of genocide-related offences.

The operation of these tribunals—along with the ghastly crimes that led to their creation—created a new if modest impetus for genocide prosecutions by national courts. While suspected leaders of the 1994 Rwanda genocide have been prosecuted by the ICTR, over 2700 accused genocidaires have been prosecuted before Rwandan courts. A War Crimes Chamber in Sarajevo, which formally began operating in March 2005, has brought genocide-related charges against a number of suspects in connection with the 1995 Srebrenica massacre. In the 1990s and the early years of the 21st century, courts in several countries outside Rwanda and the Balkans, including Germany, Canada, Switzerland, Austria, Denmark, France and Belgium, also instituted genocide proceedings against suspected perpetrators from Rwanda and the former Yugoslavia.

While individuals can be prosecuted for genocide, States can be held legally responsible for breaching their obligations under the Genocide Convention. Parties to the convention can bring a case before the International Court of Justice (which handles disputes between States) alleging that another State party has violated the treaty. But no State turned to the ICJ to enforce the treaty against a State said to be responsible for genocide until 1993. That case was brought by a State that had endured atrocities—Bosnia and Herzegovina—against a State allegedly responsible—the former Yugoslavia—and not by other States determined to enforce the law of universal conscience on behalf of desperate victims beyond their borders. In a controversial judgment rendered on February 26, 2007, the ICJ concluded that Bosnia’s legal team had established the occurrence of genocide only in respect of the Srebrenica massacre. But, the Court found, Bosnia failed to prove the Serbian State’s legal responsibility for this genocide.

Serbia nonetheless became the first State in history judged to have violated the Genocide Convention. Its failure to arrest and transfer to the ICTY Ratko Mladic, who was twice indicted for genocide by the ICTY, violated Serbia’s treaty-based duty to punish genocide. Serbia was found in violation of another core duty under the genocide treaty—to prevent genocide. In the Court’s reckoning, this obligation meant that Serbia should have used its significant influence with the Bosnian Serbs who carried out the Srebrenica genocide to prevent them from doing so.

Genocide in History

Although the crime of genocide is associated above all with Hitler’s Final Solution, this was not the first campaign of extermination that would qualify as genocide. The systematic extermination of Armenians by the Young Turks beginning in April 1915—an episode that loomed large in Lemkin’s early thinking about the need to criminalize what he later termed genocide—was the first genocide in the twentieth century. Emboldened by the world’s acquiescence in the slaughter of Armenians—over 1 million are estimated to have been put to death—Hitler is famously reported to have reassured doubters in his ranks by asking, “Who after all is today speaking of the Armenians?”

Turning to more recent episodes of wholesale slaughter, at least some scholars have concluded that the Turkish massacre of Kurds in the district of Dersim in 1937-1938, the massacre of Hutus by Tutsi perpetrators in Burundi in 1972, the Khmer Rouge campaign of extermination in the mid-1970s, and the 1988 Anfal campaign against Iraqi Kurds meet the legal definition of genocide.

Among these cases, perhaps none better illustrates the complexities of the 1948 convention’s definition of genocide than the case of Cambodia. In view of the magnitude of the carnage there—some 1.5 million out of Cambodia’s 7 million citizens are believed to have died as a result of Khmer Rouge policies—there has been a keen desire to affix the term “genocide” to their crimes. Since, however, both the perpetrators and the majority of victims were Khmer, reaching this conclusion has required agile legal reasoning. Some scholars have invoked the concept of auto-genocide, arguing that it is possible to satisfy the 1948 convention’s definition even when the perpetrators sought to kill a substantial portion of their own ethnic/national group. Others, more conservatively, have conceded that the vast majority of victims were killed for reasons that may be broadly termed political, but note that certain minority groups, such as the Muslim Cham and Khmer Buddhists, were specially targeted for destruction and argue that at least the crimes against these groups were genocidal. Notably, the jurisdiction of a court established in 2006 to prosecute senior surviving Khmer Rouge leaders, a joint enterprise of the United Nations and the government of Cambodia, includes genocide.

For decades, the dearth of precedents enforcing the Genocide Convention—a grim testament to the international community’s failure of will—left experts able to do little more than speculate knowledgeably about whether well-known candidates for the label “genocide” met the legal definition. Today, international tribunals and national courts are gradually clarifying definitional ambiguities and serving notice—however tentatively—that those responsible for genocide may face justice. Still, the very fact that courts are presiding over genocide-related cases stands as a stark testament of a deeper failure: If States have at last begun to meet their obligation to punish genocide, they have barely begun to meet their duty to prevent it in the first place or, at the least, to stop it in its deadly tracks.

Courts and Tribunals

Morris — Wed, 08 Mar 2000 15:52:39 +0000

By Charles Garraway

“Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

These words are taken from the judgment of the International Military Tribunal at Nuremberg. This was the first attempt in modern times to hold accountable in criminal proceedings before an international tribunal the perpetrators of crimes against international law. An earlier attempt at the end of World War I to establish a Tribunal to try the Kaiser for “a supreme offence against international morality and the sanctity of treaties” had collapsed when the Dutch authorities refused to hand him over for trial. War crimes trials were held before the Supreme Court in Leipzig but these were before domestic courts and were described by one commentator as a “judicial farce.” The record of domestic courts in enforcing international law has not been impressive.

Following Nuremberg, and its sister Tribunal in Tokyo, the newly formed United Nations adopted the “Nuremberg Principles” establishing much of the jurisprudence but the Cold War prevented any further attempts to build on those foundations. Although consideration was given to the formation of an International Criminal Court to sit alongside the International Court of Justice, States were not prepared to give up their sovereign rights to that extent and the proposal was stalled.

It was only in the 1990s after the end of the Cold War that the project gained renewed support. This arose as a result of the atrocities committed during the breakup of the Yugoslav Republic and of the genocide in Rwanda. The United Nations Security Council established ad hoc Tribunals to try those responsible for genocide, crimes against humanity and war crimes. The Statutes of the Tribunals were based strongly on the Nuremberg precedent. In the case of Rwanda, the Statute broke new ground in granting international jurisdiction for the first time over war crimes committed in a non-international armed conflict.

These developments led on to renewed efforts to establish an International Criminal Court. After lengthy negotiations, a Statute was adopted in 1998 and the Court came into effect in 2002 after the Statute had received the necessary number of State ratifications. The Court is treaty based and only has jurisdiction where crimes listed in the Statute are committed either by a national of a State Party or on the territory of a State Party. In addition, the Security Council can refer a situation to the Court under its binding powers, thus granting it jurisdiction. To date (2007), there have been three State referrals, Uganda, Democratic Republic of Congo and Central African Republic, and one referral by the Security Council, Darfur. The Prosecutor has opened investigations into all these except the Central African Republic where at the time of writing he is still carrying out a preliminary analysis.

The crimes listed in the Statute are genocide, crimes against humanity and war crimes with each crime closely defined both in the Statute itself and in a subsidiary document, “Elements of Crimes.” The Court will also have jurisdiction in the future over aggression but subject to a definition being agreed and adopted by the States Parties. There are currently (2007) around 100 States Party to the Statute though there are some important absentees, including the United States, Russia and China. The United States originally signed the Statute but has since withdrawn its signature and has sought bilateral agreements with States to prevent its personnel being handed over to the ICC. It did not, however, oppose the Darfur referral in the Security Council but instead abstained on the vote.

The main difference between the International Criminal Court and the ad hoc Tribunals is in the nature of their jurisdiction. The ad hoc Tribunals were established by the United Nations Security Council under its binding powers and have compulsory jurisdiction with primacy over domestic State courts. The International Criminal Court on the other hand is designed to be “complementary” to domestic State Courts and will only be able to act where a State with jurisdiction is “unable” or “unwilling” to act itself. The onus is therefore placed on national courts to take responsibility. Already, many States Parties to the Statute have introduced national legislation, some for the first time, giving their domestic courts jurisdiction over the crimes listed in the Statute in order to ensure that they can take advantage of the “complementarity” provisions.

Whilst the International Criminal Court may provide a forum for some future conflicts, there remain many which fall outside its scope either because of timing (the International Criminal Court does not have retroactive jurisdiction) or because relevant States were not Parties to the International Criminal Court Statute. The trend in such cases has been towards placing greater responsibility on States themselves rather than establishing new international tribunals. The ad hoc Tribunals have been criticized for being too expensive, too remote (they are located outside the territories with which they deal) and too slow. Inevitably, they can only deal with a small number of major cases and some other forum will be required to deal with the vast majority of alle gations. National authorities in both the former Yugoslavia and in Rwanda have had to wrestle with this problem and take action themselves, either by means of empowering local courts or by some form of extrajudicial process such as the tribal Gacaca proceedings adopted in Rwanda.

In Sierra Leone, by a treaty between the United Nations and the Government of Sierra Leone, a Special Court was established in 2002 to deal with the aftermath of the civil war in that country. This “hybrid” court has both international and Sierra Leonean judges and has jurisdiction not only over international crimes but also some crimes under national law as well.

In Cambodia, lengthy negotiations between the United Nations and the Cambodian authorities have led to the establishment of “Extraordinary Chambers,” established under Cambodian law but with international support and assistance, to “prosecute those most responsible for crimes and serious violations of Cambodian and international law between 17 April 1975 and 6 January 1979” during the Pol Pot regime. However, this Court has been beset by financial and political difficulties and has not yet begun to function fully.

In East Timor Special Panels of Dili District Court were established and in Kosovo, UNMIK created the War and Ethnic Crimes Courts, all to deal with international crimes. Whilst these are national courts, they are staffed by both international and national personnel though operating primarily under domestic law provisions. The Timor Panels in particular have run into difficulties, due partly again to funding difficulties and partly due to the failure of the Panels to obtain jurisdiction over many of the indictees who are now located in Indonesia. The Kosovo Courts will be watched closely by the domestic courts in Croatia, Serbia and Montenegro and Bosnia-Herzegovina as the ad hoc Tribunal in The Hague winds down its work and begins to refer cases back to the national jurisdictions.

Similarly, in Iraq, a Special Tribunal was established during the occupation to try the leaders of the Saddam regime. The new Iraqi Government has now passed its own law, based on that passed by the Occupying Powers, creating “The Iraqi Higher Criminal Court.” This Court has jurisdiction over genocide, crimes against humanity and war crimes as well as certain offences under Iraqi law principally involving the misuse of political power. The Court operates under a procedure that is a mixture of Iraqi and international law but is mainly staffed by Iraqi nationals. Originally the Court was required to appoint international advisers and observers to the various sections of the Court but that has, under the new law, become optional rather than obligatory. Initial indications are that international involvement has been limited, in part because the death sentence, suspended under the occupation, has now been restored. In the early trials, concern has been expressed about political interference both by the United States and by the Iraqi Government itself. Two presiding judges have been replaced during the proceedings. These concerns were particularly acute in respect of the appeals process culminating in the execution of Saddam Hussein and others.

Certainly States coming out of conflict and recovering from repressive regimes will face severe difficulties in coming to terms with the past. Each situation will be different and will require a slightly different solution. The move towards encouraging greater domestic involvement in judicial and other proceedings may assist in restoring the rule of law but international involvement will still be required to a greater or lesser extent to avoid allegations of vengeance or “victors’ justice.” However, the move towards individual accountability for international crimes is based firmly on the foundations laid long ago at Nuremberg where it was recognized that only by such accountability could international law be enforced.

Command Responsibility

Morris — Tue, 07 Mar 2000 22:55:35 +0000

By Nomi Bar-Yaacov

In January 1988, barely one month into the Intifada uprising against Israeli occupation of the West Bank and Gaza Strip, Col. Yehuda Meir ordered troops under his command to round up twenty Palestinian men from Hawara and Beita, two Arab villages in the West Bank, bind them in handcuffs and blindfolds, and break their bones. The unit commander reporting to Meir passed on the order to his troops, but told them he did not require them to comply. Some soldiers refrained from doing so, but others carried out the order with such zeal that they broke their truncheons. The defense minister at the time, Yitzhak Rabin, publicly spoke of the need to “break the bones of Intifada rioters.”

Although Meir was not present during the incident, he was the superior commanding officer in the area.

It took some months before military police, following a request by the International Committee of the Red Cross (ICRC), launched an investigation. The army chief of staff summoned Meir and offered him the choice: to appear before a disciplinary military court for a severe reprimand and discharge from the army, or to face a court martial. Meir accepted the first option, under which he was to go to work for the State security service until he could begin retirement on his colonel’s pension.

When word of the behind-the-scenes deal became public, the Association for Civil Rights in Israel petitioned the Israeli High Court of Justice, demanding that Meir be court-martialed.

The High Court ruled unanimously that Meir should be tried in a special military tribunal for torture, intentionally causing bodily harm, grievous assault—all, incidentally, grave breaches of the Geneva Conventions—and unbecoming conduct. ”These actions outrage every civilized person, and no lack of clarity can cover it up” Justice Moshe Bejski said. “Certainly, if the order is given by a senior officer, that officer must be aware that the morality of the Israeli Defense Forces forbids such behavior.”

Following the High Court’s decision, Meir went on trial before a special military tribunal in Tel Aviv in April 1991. He was found guilty, demoted to private’s rank, and deprived of his colonel’s pension.

Meir’s case points to two critical issues of international humanitarian law (IHL). Can obedience to superior orders be a defense against allegations of war crimes? And how far up the chain of command does “command responsibility” reach?

The answer to the first question is that a claim of superior orders cannot serve as a defense against an allegation of grave breaches or other serious violations of IHL. It should be noted, however, that the illegality of the orders was blatant and undeniable in Meir’s case. In other cases, the illegality may not be so apparent, and a war crimes prosecution may fail if the subordinate is not shown to have acted “willfully” in the sense of knowing or having reason to know that the order was illegal. In addition, although a claim of superior orders cannot serve as an affirmative defense, it may be part of a claim of duress—such as a threat to execute the subordinate for failure to carry out orders—that may be offered in mitigation.

The second issue is how far up the chain of command responsibility may extend for ordering a war crime. Article 86 of Additional Protocol I to the 1949 Geneva Conventions states: “the fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal disciplinary responsibility as the case may be if they knew, or had information which would have enabled them to conclude in the circumstances at the time that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.”

This rule applies to officers. Therefore command responsibility extends as high as any officer in the chain of command who knows or has reason to know that his subordinates are committing war crimes and failed to act to stop them. Although Israel has not ratified Additional Protocol I, it is clear from Israeli Supreme Court practice that its domestic law embraces these internationally recognized standards for superior orders and command responsibility.

Under the 1998 statute of the new International Criminal Court, a military commander is liable for crimes that he “knew or should have known” about under circumstances at the time, and only for those crimes committed by forces under his “effective command and control.” He is liable if he “failed to take all necessary and reasonable measures” to prevent and repress such crimes that subordinates “were committing or about to commit” or for failing to report such crimes to proper authorities.

Various cases have raised difficult questions, starting with the famous Yamashita case heard by the International Military Tribunal in Tokyo following World War II. This Tribunal held a senior enemy commander to what many critics, including a dissenting U.S. Supreme Court opinion, thought to be an extraordinarily high standard of responsibility for actions of subordinates, even under circumstances where Admiral Yamashita had lost almost all command, control, and communications over his subordinates. In practical terms, command responsibility is not taken to extend as far up the chain of command as might logically be implied, that is, to commanders in chief, and is generally confined to officers in some meaningful supervisory capacity.

Meir argued in his own defense that he was acting in accord with his understanding of orders given by his superiors. The tribunal rejected his argument. The judges concluded that political and high-ranking military officials had not given orders to break bones. Consequently, the State prosecutor’s office decided not pursue charges against Ehud Barak, the chief of staff at the time, Rabin, the minister of defense, or Maj. Gen. Yitzhak Mordechai, the commanding officer of the central zone.

Officers and soldiers who carried out Meir’s orders in the Hawara and Beita affair were tried in special military courts. Their arguments that they were merely “obeying orders” were rejected and they served time in prison.

Child Soldiers

Morris — Tue, 07 Mar 2000 17:52:45 +0000

By Anna Cataldi and Jimmie Briggs

“I didn’t think I would live,” said Owo Peter, a thin, slightly built boy in his teens. “I can’t return to my village because they would attack my family. If I am caught now, they will kill me with no explanation.”

Peter, recovering from a serious gunshot wound at the World Vision Center in Gulu, Uganda, looked away as he recounted the story of how he’d been abducted and forced to fight by the Lord’s Resistance Army (LRA) rebel group. He said that he’d been snatched from his home in the village of Odek, in northern Uganda by members of the LRA several years before, as he worked on the arts and crafts he sold by the side of the road. Somehow, the raggedy group of rebels—themselves children in their teens—knew that Peter had once served with the local home guard. As the guerrillas moved with him and other captives, the commanders singled him out for a beating with tree limbs. Ten grunts were chosen to lash his back, torso and legs. The guerrillas and their captives were headed to southern Sudan, where the rebel camp awaited.

Peter survived the journey despite his severe wounds, and remained at the rebel outpost for the next four years. His captors sent him, with very little training, into major battles. When Peter was shot in the arm during an incursion into Uganda, he saw his opportunity to escape. He was unable to say how many people he’d killed during his time as a child soldier.

One of the most alarming trends relating to children and armed conflict is their participation as active soldiers. Children as young as eight years of age are being forcibly recruited, coerced and induced to become combatants. Manipulated by adults, children have been drawn into violence that they are too young to resist and with consequences they cannot imagine.

Child soldiers are recruited in many different ways. Some are conscripted, others are press-ganged or kidnapped, and still others are forced to join armed groups to defend their families. Sometimes, children become soldiers simply in order to survive.

The employment of children in this way is anything but a recent phenomenon – for millennia, children have gone to war as drummer boys, messengers, porters, and servants – but the escalating number of children bearing arms in contemporary conflicts is terrifying. Non-governmental organizations estimate that there are now some 300,000 children serving as soldiers in over 30 conflicts around the world. Africa has the highest numbers of child soldiers, but they have also been used in Colombia, Sri Lanka, Nepal and many other places. Both boys and girls are affected. Human Rights Watch has said that in Uganda—as well as in Ethiopia and El Salvador—as many as one third of children pressed into service or recruited by armed groups are girls. Often they are forced to act as sex slaves in addition to their other tasks.

Many branches of international law forbid the recruitment of child soldiers. The two Additional Protocols of 1977, applying to international and internal conflicts respectively, impose on the parties to a conflict the obligation to do everything feasible to prevent children under fifteen from taking part in hostilities” and to refrain from recruiting them into their armed forces. Using child soldiers below the age of fifteen is also generally agreed to be a violation of customary law. The 1998 Rome Statute for an International Criminal Court lists conscription or enlistment of children under the age of fifteen and using children to participate actively in hostilities as war crimes in international and non-international armed conflict.

Human rights law also addresses the issue of children in armed conflict. The 1989 Convention on the Rights of the Child (CRC), which has gained nearly universal acceptance, is the primary instrument. The convention defines a child as a person below the age of eighteen, but sets fifteen as a minimum age for going to war. Only two countries have not ratified it: Somalia and the United States. (In the United States, opposition is based in part on its prohibition on executing people for crimes committed between the ages of 16 and 18.) In January 2000, an Optional Protocol was passed to the CRC, requiring governments to take all feasible measures to prevent children below 18 from taking part in hostilities. The Protocol also forbids the forcible recruitment by governments of children below 18, and bans non-governmental forces from enlisting children below 18 in any circumstances.

In October 2005, the International Criminal Court announced that it had issued warrants for the arrest of five leaders of the Lord’s Resistance Army, the first such step taken by the new court. The ICC prosecutor accused Joseph Kony, leader of the LRA, and four of his closest commanders of killing, raping and robbing civilians. The ICC chief prosecutor, Luis Moreno Ocampo, put a special emphasis on the LRA’s systematic kidnapping of children, forcing them to fight and using girls as sex slaves.