Understanding Genocide and Crimes Against Humanity: Definitions and Complexities

GENOCIDE

CONTENTS

INTRODUCTION...........................................................................................1

DEFINITION AND COINING OF THE TERM GENOCIDE................................1

ARTICLE 3 OF THE CONVENTION................................................................2

PROTECTED GROUPS.................................................................................2

SPECIAL INTENT....................................................................................2

PROVING SPECIAL INTENT TO DESTROY...........................................3

PROVING SPECIAL INTENT TO DESTROY..........................................4

CONCLUSION ON GENOCIDE................................................................5

CRIMES AGAINST HUMANITY....................................................................6

ARTICLE 7 OF THE ICC ROME STATUTE CRIMES AGAINST HUMANITY.....8

WIDESPREAD OR SYSTEMATIC ATTACK....................................................9

WHAT ARE WAR CRIMES..........................................................................11

DIFFERENCE BETWEEN WAR CRIMES AND CRIMES AGAINST HUMANITY.11

Genocide understandably is considered to be the gravest crime against humanity

it is possible to commit. Generally it is considered to be one of the worst moral

crimes where there is a systematic and deliberate destruction of a racial,

political or cultural group. But there are conflicting views on the legal definition

of Genocide, as to when can the mass killings or forced movements involving

the deaths of people be called Genocide. There are people who believe that

there was during the last century there was only one genocide, while others

believe that there probably three or more genocide that happened last century.

DEFINITION AND COINING OF THE TERM GENOCIDE:

19th century saw the coining of the term ‘GENOCIDE’ when German

authorities during World War II with a systematic attempt tried to kill each and

every member of Jew and destroying their identity as a group, race and religion.

Infact the term came in existence in 1944 when a Jewish-Polish lawyer Raphael

Lemkin connected the Greek word "genos" (race ) to the Latin word "cide" (to

kill). It is to be noted that every member of his family except his brother and

himself were killed during HOLOCAUST. Raphael Lemkin fled the German

occupation of Poland in 1939 and went to Sweden. At the end of World War II,

Lemkin moved to New York where he campaigned to have genocide

recognised as a crime under international law. Raphael Lemkin efforts finally

paved the way to the adoption of the UN Convention on Genocide in December

1948, which came into effect in January 1951.**

Article Two of the convention defines genocide as "any of the following acts

committed with the intent to destroy, in whole or in part, a national, ethnic,

racial or religious group, as such":

Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

ARTICLE 3 OF THE CONVENTION:

Article III has described 5 punishable forms of the crime of genocide.

Mentioned are the acts that shall be punishable.

1) Genocide

2) Conspiracy

3) Incitement

4) Attempt

5) Complicity

PROTECTED GROUPS

This law protects four groups- NATIONAL, RACIAL, ETHNICAL AND

RELIGIOUS GROUPS. Below mentioned are their definitions:

1) NATIONAL GROUP: They are a set of individuals whose identity

basically refers to a common country of nationality or national origin.

2) RACIAL GROUP: They are a set of individuals whose identity is

characterized by their physical characteristics.

3) ETHNICAL GROUP: They are a set of individuals whose identity is

defined by common cultural traditions, language or heritage.

4) RELIGIOUS GROUP: They are a set of individuals whose identity is

defined by common religious creeds, beliefs, doctrines, practices, or

rituals.

PROHIBITED ACTS (actus reus)

1) Members of a particular Group being killed

2) Causing mental or serious bodily harm (this can include torture, rape,

sexual violence, forced or coerced use of drugs and mutilation.

3) Prevention of births (this can include involuntary sterilization,

prohibition of marriage, forced abortion)

4) Forcibly transferring children to another group

The genocide offence has two separate mental elements, namely a general

one that could be called ‘general intent’ , and an additional ‘intent to

destroy’.

GENERAL INTENT: In genocide, General intent relates to all objective

elements of the offence definition (actus reus) which is directed against one

of the protected groups. According to International criminal law by Article

30 of the Statute of the International Criminal Court (ICC) as basically

encompassing a volitional or a intellectual element.(1)

FOOTNOTES :(1) Art. 30(1) reads: ‘Unless otherwise provided, a person shall be criminally responsible and liable for

punishment for a crime within the jurisdiction of the Court only if the material elements are committed with knowledge

and intent.’

SPECIAL INTENT (mens rea): to Destroy, in whole or in part, a group as

such

The ‘intent to destroy’ requirement turns genocide into ‘an extreme and the

most inhumane form of perscecution.’ This means that the genocidaire

might would have intended more than he is realistically able to accomplish.

Example: Let us take a case, where a white racist intends to destroy a group

of black people in a large city but by acting on his own, he will only be able

to kill few members of the group. Genocide may then be qualified as a

special intent crime, this does not answer the question as to the concrete

meaning and degree of this intent. The meaning of ‘intent to destroy’

The meaning of ‘intent to destroy’

The seminal Akayesu judgement(3) understood the ‘intent to destroy’ as a

‘special intent’ or dolus specialis, defining it as ‘the clear intent to cause the

offence.’

FOOTNOTES(3): In the year1998, September 2, the International Criminal Tribunal for Rwanda (a court established by

the United Nations) issued the world's first conviction. It defined crime of genocide after trial before an international

tribunal. Jean-Paul Akayesu was judged guilty of genocide and crimes against humanity for acts he engaged in and oversaw

while mayor of the Rwandan town of Taba. As mayor, Akayesu was the leader of the village and was treated with respect by

the population. When the Rwandan genocide began on April 7, 1994, Akayesu initially kept his town out of the mass

killing,and refused to let militia operate thereby protecting the local Tutsi population. But, an April 18 meeting of mayors

with interim government leaders (those who planned and orchestrated the genocide), there was a fundamental change that

took place in the town and within Akayesu too. Akayesu seemed to have calculated his political and social future, which

depended on joining the forces carrying out the genocide. He exchanged his business suit for a military jacket, literally

donning violence as his modus operandi. Witnesses saw Akayesu incite townspeople to join in the killing and turn former

safe havens into places of murder, torture and rape.

PROVING SPECIAL INTENT TO DESTROY

Often it is very difficult to determine. Take for example Srebrenica massacre,

where Bosnian Serb forces could’nt have not known, therefore they must have

intended .(4)

FOOTNOTE (4): More than 7,000 Bosniak (Bosnian Muslim) boys and men were perpetrated by Bosnian Serb forces

in Srebrenica ,a town in eastern Bosnia and Harzegovina, in July 1995. Besides that, more than 20,000 civilians were

expelled from the area- a process known as ethnic cleansing. The International Criminal Tribunal for the Former Yugoslavia

in their conclusions found the military conduct which resulted in killings and mass expulsion of Bosniak civilians as genocide.

For the first time, the international community had the chance to witness the practice of implementing State responsibility

in relation to the crime of genocide.

Genocide in Darfur?

Recently, massive atrocities committed on the territory of Darfur – a Western

Sudanese region – have captured the attention of the international community.

The long-lasting conflict between nomad cattle herders – mainly Arab tribes –

and settled agriculturalists of African descent escalated in 2003. The ethnic

diversity was not the origin of this conflict but rather the struggle for scarce

resources like water or land. In the course of time, the tensions more and more

became ethnically motivated with the influence of the Sudanese government

playing a significant role in this process. The central Sudanese government

responded with massive military violence. For this, they did not only use

“official” armed forces but also the so-called Janjaweed militias. These militias

are well organised, mounted and armed Arab groups which are closely

connected to the government in Khartoum. The governmental forces did not

only combat the aggressive rebels but primarily the civilian population. Villages

were firstly attacked by extensive air raids through the army. Then, the

Janjaweed showed up to pillage the houses and to rape and kill the fleeing

inhabitants. Today, nearly 75 per cent of the villages in Darfur are destroyed by

fire and between 200.000 and 500.000 victims were killed. Until February 2005,

there were approximately 2,5 million displaced persons who are still suffering

from horrible living conditions and ongoing attacks on settlements and refugee

camps which are occurring down to the present day albeit with lower intensity.

As already mentioned, in reaction to the escalating violence and the grave

breaches of humanitarian law in Darfur the UN Security Council established an

independent commission of experts to investigate the incidents with Antonio

Cassese as its chairman – the Commission of Inquiry. In consequence of the

Commission's findings and its recommendation, the UN Security Council –

acting under Chapter VII of the UN Charter – referred the situation in Darfur to

the ICC by Resolution 1593 in March 2005, in accordance with Art. 13 (b) of

the ICC Statute

** But since the adoption, this UN treaty has often come under fire as people

across the world find it difficult to apply it to different cases. Some analysts

contend that the definition is too narrow and the mass killings that happened

after the treaty’s adoption does not fall under it due to the definition.**

Below mentioned are the objections raised to the treaty.

a) Targeted political and social groups are excluded from this Convention

b) This definition is only limited to direct acts against people. It excludes

acts against the environment which sustains them or their cultural

distinctiveness

c) Proving intention beyond reasonable doubt is extremely difficult

d) The difficulty of defining or measuring "in part", and establishing how

many deaths equal genocide

CONCLUSION: Genocide relates to a crime of collectiveness in many ways.

Specific collectiveness are protected, reflecting specific priorities. It also gives

us an idea that without an overall plan and co-ordination these prohibited acts of

mass killings of a sect, race or religion can’t be done. In order to appease

domestic lobbies, the US government called Darfur a genocide, and because the

statement cost it nothing. But there is a situation and thought process to Darfur

which experts feel will end only when it suits the great powers that have a stake

in the region. There is also a requirement of a campaign of vilification and

dehumanization of the victims by the perpetrators, which are usually new states

or new regimes, attempting to impose conformity to a new ideology and its

model of society.

CRIMES AGAINST HUMANITY

The term Crimes against Humanity defines anything atrocious committed on a

large scale. It can also be termed as a part of a attack directed against a Civilian

population. This attack can be systematic and widespread. Below mentioned are

the acts which are treated as a part of the atrocities under the ‘Crimes against

Humanity.’

1) Murder

2) Rape

3) Torture

4) Extermination

5) Deportation or forcible transfer of population

6) Enslavement

7) Crime of Aparthied

PLACE OF THIS CATEGORY OF CRIME

‘Crime against Humanity’ terminology is close to genocide, but the major

difference that it has unlike genocide intent is that it is not directed only against

racial, national, ethnic or religious groups.

It is close to war crimes, but(arguably) not require the existence of any armed

conflict. To some extent, Genocide and war crimes overlap with crimes against

humanity. But crimes against humanity can be distinguishable from genocide

according to 1948 Genocide Convention , in that they do not require an intent to

“destroy in whole or in part,” but only target a given group and carry out a

policy of “widespread or systematic” violations. Whereas, Crimes against

humanity is distinguishable from war crimes in the sense that they not only

apply in the context of war—they apply in times of war and peace.

SOURCES AND DEVELOPMENT OF THE CONCEPT

The term originated in the 1907 Hague Convention preamble, which codified

the customary law of armed conflict.

In connection with the Treaty of Versailles, the Allies, after the World War I

established in 1919 a commission to investigate war crimes. This commission

relied on the 1907 Hague Convention as the applicable law. The commission

found out that in addition to war crimes committed by the Germans, Turkish

officials also committed “crimes against the laws of humanity” for killing

Armenian nationals and residents during the war period. Japan and United

States strongly opposed and condemned the criminalization of such conduct on

the grounds that crimes against the laws of humanity were violations of moral

and not positive law.

Henceforth, in year 1945, the United States and other Allies developed the

Agreement for the Punishment and Prosecution of the Major War Criminals of

the European Axis and Charter of the International Military Tribunal (IMT),

sitting at Nuremberg, which contained the following definition of crimes against

humanity in Article 6(c):

“Crimes against murder, humanity , enslavement, extermination, deportation,

and other inhumane acts committed against civilian populations, during or

before the war; or persecutions on racial , political 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.”

Still, that category of crimes has been included in the statutes of the

International Criminal Tribunal for the former Yugoslavia (ICTY) and the

International Criminal Tribunal for Rwanda (ICTR), as well as in the statute of

the International Criminal Court (ICC). In fact, there are eleven international

texts defining crimes against humanity, but they all differ slightly as to their

definition of that crime and its legal elements. However, what all of these

definitions have in common is:

(1) It refers to specific acts of violence against persons irrespective of the fact

that whether the person is a non- national or national. It also doesn’t take into

accordance whether these acts are committed in time of war or time of peace

(2) These acts must also have been the product of persecution against an

identifiable group of persons irrespective of the make-up of that group or the

purpose of the persecution.

The list of the specific crimes contained within the meaning of crimes against

humanity has been expanded since Article 6(c) of the IMT to include, in the

ICTY and the ICTR, rape and torture.

• ICTY Statute: Article 5: 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.

• ICTR Statute: Article 3 […]the following crimes when committed as part of a

widespread or systematic attack against any civilian population on political,

national, ethnic, racial or religious grounds: 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.

ARTICLE 7 OF THE ICC ROME STATUTE CRIMES AGAINST

HUMANITY

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;

g) (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.

WIDESPREAD OR SYSTEMATIC ATTACK

A crime against humanity involves the commission of certain prohibited acts

committed as part of a widespread or systematic attack directed against a

civilian population. When committed within this context, what would have been

an “ordinary” domestic crime, such as murder, becomes a crime against

humanity.

AN ATTACK

The word implies some scale and method, but not necessarily military. A person

commits a crime against humanity when he or she commits a prohibited act that

forms part of an attack.(5)

There are factors when determining whether an ‘attack’ against a civilian

population has taken place include:

a) Was there an authoritarian takeover of the region where the crimes

occurred?

b) Did the new authority in fact establish “governmental” structures?

c) Were there discriminatory measures imposed by the relevant authority?

d) Did summary arrests, detention, torture, rape, sexual violence or other

crimes take place?

e) Was the “enemy population” removed from the area?(6)

FOOTNOTES(5) See, e.g., Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Judgement, 2 Sept. 1998, ¶ 205.

(6) Dragan Nikolid, Review of Indictment Pursuant to Rule 61 of the Rules of

Procedure and Evidence, TC, IT- 94-2-R61, 20 Oct. 1995, ¶ 27.

The concepts “attack” and “military attack” differ. A crime against humanity

can occur when there is no armed conflict.(7) Thus, an attack is not limited to

the conduct of armed hostilities or use of armed force. CAH can include

mistreatment of a civilian population. The attack could also precede, outlast or

continue during an armed conflict, without necessarily being part of it.(8) The

attack does not need to involve the military or violent force.(9)

ICTY and ICTR jurisprudence, and the Rome Statute, provide that there must

be at least “multiple” victims or acts to be considered an attack directed against

a civilian population.(10) The acts can be of the same type or different.(11)

DIRECTED AGAINST ANY CIVIL POPULATION

The term population entails scale. It also entails a collective element(not

random individuals). “Directed against” requires that the civilian population

must be the primary target of the attack, not just an incidental target.

Whereas “Civilian” refers to non-combatants. Basically “Population” refers to a

larger body of victims and crimes of a collective nature. It is not required that an

entire population of an area be targeted, but it is enough to show that a certain

number of individuals were targeted in the course of the attack, or that

individuals were targeted in such a way that demonstrates that the attack was in

fact directed against a civilian “population”, rather than against a small and

randomly selected number of individuals.

FOOTNOTES (7) Except at the ICTY, where crimes against humanity must be committed “in armed conflict, whether international or internal in character”. ICTY Statute, Art. 5. This requirement was abandoned in the ICTR and ICC Statutes. (8) Dragoljub Kunarac et al., Case No. IT-96-23-A, Appeal Judgement, 12 June 2002, ¶ 86. (9) Akayesu, TJ ¶¶ 676 – 684. (10) Rome Statute of the International Criminal Court, Art. 7(2)(a); Dragoljub Kunarac et al., Case No. IT-96- 23-T, Trial Judgement, 22 Feb. 2001, ¶ 415; Milorad Krnojelac, Case No. IT-97-25-T, Trial Judgement, 15 March 2002, ¶ 54. (11) Clément Kayishema et al., Case No. ICTR-95-I-T, Trial Judgement, 21 May 1999, ¶ 122.

Factors to determine whether an attack was directed against a civilian

population include:

1) Number of victims;

2) the means and methods used in the course of the attack;

3) the discriminatory nature of the attack;

4) the status of the victims;

5) the resistance to the assailants at the time;

6) the extent to which the attacking force may be said to have complied or

attempted to comply with the precautionary requirements of the laws of

war

RELATIONSHIP BETWEEN ANY CIVILIAN POPULATION AND

MILITARY TARGETS

The primary object of any attack must be any civilian population but the

attacks that are directed primarily at military targets are excluded. In order

to determine whether an attack was aimed at civilian or military targets, the

court may consider whether or not the relevant party complied with the laws

of war (this does not mean that targeting civilians is lawful when justified by

military necessity—there is an absolute prohibition on targeting civilians

under international law25). For example, in the Mrkšid case at the ICTY,

crimes were directed against a group of people based on their perceived

involvement in the armed forces and therefore were treated differently than

the civilian population. The facts of this case involved wounded combatants

being selected for execution and killed. These crimes were not crimes

against humanity, however, even though they were committed just two days

after the perpetrators had participated in a major attack on civilians in the

same region. Since the perpetrators acted with the understanding that their

victims were members of the armed forces, they did not intend for their acts

to form part of the attack on the civilian population and therefore no nexus

existed.

WHAT ARE WAR CRIMES:

War crimes are defined as grave violations of the customary and treaty law

with regards to international humanitarian law that are now considered as

criminal offences for which there is individual responsibility. It is also

defined as the breach of established protocols and agreements and the non-

adherence to the norms of procedure and rules of battle. Mistreatment of

POWs and civilians are examples of what are considered as war crimes. The

first formal statements concerning war crimes were established during the

Hague and Geneva Conventions, but the earliest “international” tribunal

concerning war crimes was held in the Holy Roman Empire in 1474.

DIFFERENCE BETWEEN WAR CRIMES AND CRIMES AGAINST

HUMANITY

Although war crimes refers to acts that are committed during times of conflict,

it still has a much broader term. Whereas Crimes against humanity refer to acts,

before or during the war, that target a specific group of people, be it for their

race, religion or political orientation . Take for example the Taliban regime in

Afghanistan and the regimes in Sudan and Congo are some examples of

governments that condone or promote these actions. War crimes, on the other

hand, is any act that violates treaties of war or any act that does not follow

normal procedures or protocols. The shooting of a surrendering enemy or the

killing of civilians are examples of war crimes. There was no clear

accountability for war crimes and crimes against humanity before the

Nuremberg trials and as such, there was a need to clearly define the terms and

setup the necessary rules to follow in times of war. Thus, the London Charter of

the International Military Tribunal was created.

CONCLUSION:

“Crimes against Humanity” has evolved since 1945 and yet there is still no

specialized convention on “Crimes against Humanity.” The Charter’s and the

IMT’s weaknesses should not be overlooked simply because we need to

legitimize the enterprise and to rely upon it as a valid precedent for future

developments of International criminal justice.

BIBLIOGRAPHY

Chalk, F., and K. Jonassohn. The History and Sociology of Genocide: Analysis and

Case Studies, New Haven 1990.

Charny, I. W. (Ed. in Chief). Encyclopedia of Genocide, Vol. 1-2. Santa Barbara,

California 1999.

Charny, I. W. (Ed.). Genocide: A Critical Bibliographic Review, Vols. 1-2, New

York 1988, 1991.

Charny. W. (Ed.). The Widening Circle of Genocide: Genocide: A Critical

Bibliographic Review, Vol. 3, New Brunswick, New Jersey 1994.

Convention on the Prevention and Punishment of the Crime of

Genocide at: Convention