Crimes against humanity

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Crimes against humanity are certain acts that are deliberately committed as part of a widespread or systematic attack directed against any civilian or an identifiable part of a civilian population. The first prosecution for crimes against humanity took place at the Nuremberg trials. Crimes against humanity have since been prosecuted by other international courts (for example, the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Court) as well as in domestic prosecutions. The law of crimes against humanity has primarily developed through the evolution of customary international law. Crimes against humanity are not codified in an international convention, although there is currently an international effort to establish such a treaty, led by the Crimes Against Humanity Initiative.

Nuremberg trials series of military trials at the end of World War II

The Nuremberg trials were a series of military tribunals held by the Allied forces under international law and the laws of war after World War II. The trials were most notable for the prosecution of prominent members of the political, military, judicial and economic leadership of Nazi Germany, who planned, carried out, or otherwise participated in the Holocaust and other war crimes. The trials were held in the city of Nuremberg, Germany, and their decisions marked a turning point between classical and contemporary international law.

International Court of Justice primary judicial organ of the United Nations

The International Court of Justice, abbreviated as ICJ, is the principal judicial organ of the United Nations (UN). It settles legal disputes between member states and gives advisory opinions to authorized UN organs and specialized agencies. It comprises a panel of 15 judges elected by the General Assembly and Security Council for nine-year terms. It is seated in the Peace Palace in The Hague, Netherlands.

International Criminal Tribunal for the former Yugoslavia UN ad hoc court located in The Hague, Netherlands

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia (ICTY), was a body of the United Nations established to prosecute serious crimes committed during the Yugoslav Wars, and to try their perpetrators. The tribunal was an ad hoc court located in The Hague, Netherlands.

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Unlike war crimes, crimes against humanity can be committed during peace or war. [1] They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. War crimes, murder, massacres, dehumanization, genocide, ethnic cleansing, deportations, unethical human experimentation, extrajudicial punishments including summary executions, use of WMDs, state terrorism or state sponsoring of terrorism, death squads, kidnappings and forced disappearances, military use of children, unjust imprisonment, enslavement, cannibalism, torture, rape, political repression, racial discrimination, religious persecution and other human rights abuses may reach the threshold of crimes against humanity if they are part of a widespread or systematic practice.

War crime Serious violation of the laws of war

A war crime is an act that constitutes a serious violation of the laws of war that gives rise to individual criminal responsibility. Examples of war crimes include intentionally killing civilians or prisoners, torturing, destroying civilian property, taking hostages, performing a perfidy, raping, using child soldiers, pillaging, declaring that no quarter will be given, and seriously violating the principles of distinction and proportionality, such as strategic bombing of civilian populations.

In law and government, de facto describes practices that exist in reality, even if not officially recognized by laws. It is commonly used to refer to what happens in practice, in contrast with de jure, which refers to things that happen according to law. Unofficial customs that are widely accepted are sometimes called de facto standards.

Murder Unlawful killing of a human with malice aforethought

Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human being with malice aforethought. This state of mind may, depending upon the jurisdiction, distinguish murder from other forms of unlawful homicide, such as manslaughter. Manslaughter is a killing committed in the absence of malice, brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.

History of the term

The term "crimes against humanity" is potentially ambiguous because of the ambiguity of the word "humanity", which can mean humankind (all human beings collectively) or the value of humanness. The history of the term shows that the latter sense is intended. [2]

Humanity is a virtue associated with basic ethics of altruism derived from the human condition.

Abolition of the slave trade

There were several bilateral treaties in 1814 that foreshadowed the multilateral treaty of Final Act of the Congress of Vienna (1815) that used wording expressing condemnation of the slave trade using moral language. For example, the Treaty of Paris (1814) between Britain and France included the wording "principles of natural justice"; and the British and United States plenipotentiaries stated in the Treaty of Ghent (1814) that the slave trade violated the "principles of humanity and justice". [3]

The Treaty of Paris, signed on 30 May 1814, ended the war between France and the Sixth Coalition, part of the Napoleonic Wars, following an armistice signed on 23 April between Charles, Count of Artois, and the allies. The treaty set the borders for France under the House of Bourbon and restored territories to other nations. It is sometimes called the First Peace of Paris, as another one followed in 1815.

The multilateral Declaration of the Powers, on the Abolition of the Slave Trade, of 8 February 1815 (Which also formed Section XV of the Final Act of the Congress of Vienna of the same year) included in its first sentence the concept of the "principles of humanity and universal morality" as justification for ending a trade that was "odious in its continuance". [4]

Congress of Vienna conference of ambassadors of European states

The Congress of Vienna, also called Vienna Congress, was a meeting of ambassadors of European states chaired by Austrian statesman Klemens von Metternich, and held in Vienna from November 1814 to June 1815, though the delegates had arrived and were already negotiating by late September 1814. The objective of the Congress was to provide a long-term peace plan for Europe by settling critical issues arising from the French Revolutionary Wars and the Napoleonic Wars. The goal was not simply to restore old boundaries but to resize the main powers so they could balance each other and remain at peace. The leaders were conservatives with little use for republicanism or revolution, both of which threatened to upset the status quo in Europe. France lost all its recent conquests while Prussia, Austria and Russia made major territorial gains. Prussia added smaller German states in the west, Swedish Pomerania and 60% of the Kingdom of Saxony; Austria gained Venice and much of northern Italy. Russia gained parts of Poland. The new Kingdom of the Netherlands had been created just months before, and included formerly Austrian territory that in 1830 became Belgium.

First use

The term "crimes against humanity" was used by George Washington Williams in a pamphlet published in 1890 to describe the practices of Leopold II of Belgium's administration of the Congo Free State. [5] In treaty law, the term originated in the Second Hague Convention of 1899 preamble and was expanded in the Fourth Hague Convention of 1907 preamble and their respective regulations, which were concerned with the codification of new rules of international humanitarian law. The preamble of the two Conventions referenced the "laws of humanity" as an expression of underlying inarticulated humanistic values. [6] The term is part of what is known as the Martens Clause.

George Washington Williams American Civil War soldier, Christian minister, politician, lawyer, journalist, and writer

George Washington Williams was an American Civil War soldier, Baptist minister, politician, lawyer, journalist, and writer on African-American history.

Leopold II of Belgium King of the Belgians

Leopold II was King of the Belgians from 1865 to 1909. He founded and exploited the Congo Free State as a private venture and atrocities were perpetrated there under his rule.

Congo Free State Area in Central Africa under Belgian control (1885–1908)

The Congo Free State also known as the Independent State of the Congo was a large state in Central Africa from 1885 to 1908. It was ruled personally by Leopold II and not by the government of Belgium, of which he was the constitutional monarch. Leopold II was able to procure the region by convincing other Eurasian states at the Berlin Conference that he was involved in humanitarian and philanthropic work and would not tax trade. Via the International Association of the Congo, he was able to lay claim to most of the Congo basin. On 29 May 1885, i.e. after the closure of the Berlin Conference, the king announced that he planned to name his possessions "the Congo Free State", an appellation which was not yet used at the Berlin Conference and which officially replaced "International Association of the Congo" on 1 August 1885. The Congo Free State operated as a corporate state privately controlled by Leopold II. The state included the entire area of the present Democratic Republic of the Congo and existed from 1885 to 1908, when the government of Belgium reluctantly annexed the area.

On May 24, 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly charging for the first time ever another government of committing "a crime against humanity". An excerpt from this joint statement reads:

In view of these new crimes of Ottoman Empire against humanity and civilization, the Allied Governments announce publicly to the Sublime Porte that they will hold personally responsible for these crimes all members of the Ottoman Government, as well as those of their agents who are implicated in such massacres. [7]

At the conclusion of the war, an international war crimes commission recommended the creation of a tribunal to try "violations of the laws of humanity". However, the US representative objected to references to "law of humanity" as being imprecise and insufficiently developed at that time and the concept was not pursued. [8]

Nuremberg trials

Nuremberg Trials. Defendants in the dock. The main target of the prosecution was Hermann Goring (at the left edge on the first row of benches), considered to be the most important surviving official in the Third Reich after Hitler's death. Defendants in the dock at the Nuremberg Trials.jpg
Nuremberg Trials. Defendants in the dock. The main target of the prosecution was Hermann Göring (at the left edge on the first row of benches), considered to be the most important surviving official in the Third Reich after Hitler's death.

After the Second World War, the London Charter of the International Military Tribunal set down the laws and procedures by which the Nuremberg trials were to be conducted. The drafters of this document were faced with the problem of how to respond to the Holocaust and the grave crimes committed by the Nazi regime. A traditional understanding of war crimes gave no provision for crimes committed by a power on its own citizens. Therefore, Article 6 of the Charter was drafted to include not only traditional war crimes and crimes against peace, but also crimes against humanity, defined as

Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. [9] [10]

Under this definition, crimes against humanity could only be punished insofar as they could be connected somehow to war crimes or crimes against peace. [11] The jurisdictional limitation was explained by the American chief representative to the London Conference, Robert H. Jackson, who pointed out that it "has been a general principle from time immemorial that the internal affairs of another government are not ordinarily our business". Thus, "it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust war". [11] The judgement of the first Nuremberg trial found that "the policy of persecution, repression and murder of civilians" and persecution of Jews within Germany before the outbreak of war in 1939 were not crimes against humanity, because as "revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with," war crimes or crimes against peace. [12] The subsequent Nuremberg trials were conducted under Control Council Law No. 10 which included a revised definition of crimes against humanity with a wider scope. [13]

Tokyo Trial

The defendants at the Tokyo International Tribunal. General Hideki Tojo was one of the main defendants, and is in the centre of the middle row. IMTFE defendants.jpg
The defendants at the Tokyo International Tribunal. General Hideki Tojo was one of the main defendants, and is in the centre of the middle row.

The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Trial, was convened to try the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against humanity), committed during the Second World War.

The legal basis for the trial was established by the Charter of the International Military Tribunal for the Far East (CIMTFE) that was proclaimed on 19 January 1946. The tribunal convened on May 3, 1946, and was adjourned on November 12, 1948.

In the Tokyo Trial, Crimes against Humanity (Class C) was not applied for any suspect. [14] [ additional citation(s) needed ] Prosecutions related to the Nanking Massacre were categorised as infringements upon the Laws of War. [15] [ additional citation(s) needed ]

A panel of eleven judges presided over the IMTFE, one each from victorious Allied powers (United States, Republic of China, Soviet Union, United Kingdom, the Netherlands, Provisional Government of the French Republic, Australia, New Zealand, Canada, British India, and the Philippines).

Active sovereign state leaders accused of crimes against humanity

Types of crimes against humanity

The different types of crimes which may constitute crimes against humanity differs between definitions both internationally and on the domestic level. Isolated inhumane acts of a certain nature committed as part of a widespread or systematic attack may instead constitute grave infringements of human rights, or – depending on the circumstances war crimes, but are not classified as crimes against humanity. [16]

Apartheid

The systematic persecution of one racial group by another, such as occurred during the South African apartheid government, was recognized as a crime against humanity by the United Nations General Assembly in 1976. [17] The Charter of the United Nations (Article 13, 14, 15) makes actions of the General Assembly advisory to the Security Council. [18] In regard to apartheid in particular, the UN General Assembly has not made any findings, nor have apartheid-related trials for crimes against humanity been conducted.

Rape and sexual violence

Neither the Nuremberg or Tokyo Charters contained an explicit provision recognizing sexual and gender-based crimes as war crimes or crimes against humanity, although Control Council Law No. 10 recognized rape as a crime against humanity. The statutes of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda both included rape as a crime against humanity. The ICC is the first international instrument expressly to include various forms of sexual and gender-based crimes  including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other forms of sexual violence  as both an underlying act of crimes against humanity and war crime committed in international and/or non-international armed conflicts. [19] As an example, the events of Khojaly and Khatyn can be shown that the world strongly condemns. International institutions have asked for a ransom to avoid such incidents. There are hundreds of massacres, thousands of prisoners and wounded in these incidents.

In 2008, the U.N. Security Council adopted resolution 1820, which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide". [20]

Unlike genocide and war crimes, which have been widely recognized and prohibited in international criminal law since the establishment of the Nuremberg principles, [21] [22] there has never been a comprehensive convention on crimes against humanity, [23] even though such crimes are continuously perpetrated worldwide in numerous conflicts and crises. [24] [25] [26] 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. [27]

In 2008, the Crimes Against Humanity Initiative was launched by Professor Leila Nadya Sadat at the Whitney R. Harris World Law Institute to address this gap in international law. The Initiative represents the first concerted effort to address the gap that exists in international criminal law by enumerating a comprehensive international convention on crimes against humanity. [28]

On July 30, 2013, the United Nations International Law Commission voted to include the topic of crimes against humanity in its long-term program of work. In July 2014, the Commission moved this topic to its active programme of work [29] [30] based largely on a report submitted by Sean D. Murphy. [31] Professor Sean D. Murphy, the United States’ Member on the United Nations’ International Law Commission, has been named the Special Rapporteur for Crimes Against Humanity. Sean D. Murphy attended the 2008 Experts' Meeting held by the Crimes Against Humanity Initiative prior to this appointment.

There is some debate on what the status of crimes against humanity under customary international law is. M. Cherif Bassiouni argues that crimes against humanity are part of jus cogens and as such constitute a non-derogable rule of international law. [27]

United Nations

The United Nations has been primarily responsible for the prosecution of crimes against humanity since it was chartered in 1948. [32]

After Nuremberg, there was no international court with jurisdiction over crimes against humanity for almost 50 years. Work continued on developing the definition of crimes against humanity at the United Nations, however. In 1947, the International Law Commission was charged by the United Nations General Assembly with the formulation of the principles of international law recognized and reinforced in the Nuremberg Charter and judgment, and with drafting a ‘code of offenses against the peace and security of mankind’. Completed fifty years later in 1996, the Draft Code defined crimes against humanity as various inhumane acts, i.e., "murder, extermination, torture, enslavement, persecution on political, racial, religious or ethnic grounds, institutionalized discrimination, arbitrary deportation or forcible transfer of population, arbitrary imprisonment, rape, enforced prostitution and other inhuman acts committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group." This definition differs from the one used in Nuremberg, where the criminal acts were to have been committed "before or during the war", thus establishing a nexus between crimes against humanity and armed conflict. [33]

A report on the 2008–09 Gaza War by Richard Goldstone accused Palestinian and Israeli forces of possibly committing a crime against humanity. [34] In 2011, Goldstone said that he no longer believed that Israeli forces had targeted civilians or committed a crime against humanity. [35]

On 21 March 2013, at its 22nd session, the United Nations Human Rights Council established the Commission of Inquiry on human rights in the Democratic People's Republic of Korea (DPRK). The Commission is mandated to investigate the systematic, widespread and grave violations of human rights in the Democratic People's Republic of Korea, with a view to ensuring full accountability, in particular for violations which may amount to crimes against humanity. [36] The Commission dealt with matters relating to crimes against humanity on the basis of definitions set out by customary international criminal law and in the Rome Statute of the International Criminal Court. [37] The 2014 Report by the commission found "the body of testimony and other information it received establishes that crimes against humanity have been committed in the Democratic People's Republic of Korea, pursuant to policies established at the highest level of the State... These crimes against humanity entail extermination, murder, enslavement, torture, imprisonment, rape, forced abortions and other sexual violence, persecution on political, religious, racial and gender grounds, the forcible transfer of populations, the enforced disappearance of persons and the inhumane act of knowingly causing prolonged starvation. The commission further finds that crimes against humanity are ongoing in the Democratic People's Republic of Korea because the policies, institutions and patterns of impunity that lie at their heart remain in place." Additionally, the commission found that crimes against humanity have been committed against starving populations, particularly during the 1990s, and are being committed against persons from other countries who were systematically abducted or denied repatriation, in order to gain labour and other skills for the Democratic People's Republic of Korea. [37]

Security Council

UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity". [38] The resolution commits the Council to action to protect civilians in armed conflict.

In 2008 the U.N. Security Council adopted resolution 1820, which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide". [20]

International courts and criminal tribunals

After the Nuremberg and Tokyo trials of 1945–1946, the next international tribunal with jurisdiction over crimes against humanity was not established for another five decades. In response to atrocities committed in the 1990s, multiple ad hoc tribunals were established with jurisdiction over crimes against humanity. The statutes of the International Criminal Court, the International Criminal Tribunals for the Former Yugolavia and for Rwanda each contain different definitions of crimes against humanity. [39]

International Criminal Tribunal for Yugoslavia

In 1993, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY), with jurisdiction to investigate and prosecute three international crimes which had taken place in the former Yugoslavia: genocide, war crimes, and crimes against humanity. Article 5 of the ICTY Statute states that

The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: [40]

(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."

This definition of crimes against humanity revived the original ‘Nuremberg’ nexus with armed conflict, connecting crimes against humanity to both international and non-international armed conflict. It also expanded the list of criminal acts used in Nuremberg to include imprisonment, torture and rape. [40] Cherif Bassiouni has argued that this definition was necessary as the conflict in the former Yugoslavia was considered to be a conflict of both an international and non-international nature. Therefore, this adjusted definition of crimes against humanity was necessary to afford the tribunal jurisdiction over this crime. [41]

International Criminal Tribunal for Rwanda

The UN Security Council established the International Criminal Tribunal for Rwanda in 1994 following the Rwandan Genocide. Under the ICTR Statute, the link between crimes against humanity and an armed conflict of any kind was dropped. Rather, the requirement was added that the inhumane acts must be part of a "systematic or widespread attack against any civilian population on national, political, ethnic, racial or religious grounds." [42] Unlike the conflict in the former Yugoslavia, the conflict in Rwanda was deemed to be non-international, so crimes against humanity would likely not have been applicable if the nexus to armed conflict had been maintained.

Special Court for Sierra Leone

Extraordinary Chambers in the Courts of Cambodia (ECCC)

International Criminal Court

Headquarters of the ICC in The Hague International Criminal Court Headquarters, Netherlands.jpg
Headquarters of the ICC in The Hague

In 2002, the International Criminal Court (ICC) was established in The Hague (Netherlands) and the Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. The definition of what is a "crime against humanity" for ICC proceedings has significantly broadened from its original legal definition or that used by the UN. [43] Essentially, the Rome Statute employs the same definition of crimes against humanity that the ICTR Statute does, minus the requirement that the attack was carried out ‘on national, political, ethnic, racial or religious grounds’. In addition, the Rome Statute definition offers the most expansive list of specific criminal acts that may constitute crimes against humanity to date.

Article 7 of the treaty stated that:

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: [44]

(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) 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;

The Rome Statute Explanatory Memorandum states that crimes against humanity

are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offense against only a few civilians, provided those offenses are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness. [45]

To fall under the Rome Statute, a crime against humanity which is defined in Article 7.1 must be "part of a widespread or systematic attack directed against any civilian population". Article 7.2.a states "For the purpose of paragraph 1: "Attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack." This means that an individual crime on its own, or even a number of such crimes, would not fall under the Rome Statute unless they were the result of a State policy or an organizational policy. This was confirmed by Luis Moreno Ocampo in an open letter publishing his conclusions about allegations of crimes committed during the invasion of Iraq in March 2003 which might fall under the ICC. In a section entitled "Allegations concerning Genocide and Crimes against Humanity" he states that "the available information provided no reasonable indicator of the required elements for a crime against humanity," i.e. 'a widespread or systematic attack directed against any civilian population'". [46]

The ICC can only prosecute crimes against humanity in situations under which it has jurisdiction. The ICC only has jurisdiction over crimes contained in its statute – genocide, war crimes and crimes against humanity – which have been committed on the territory of a State party to the Rome Statute, when a non-party State refers a situation within its country to the court or when the United Nation Security Council refers a case to the ICC. [47] In 2005 the UN referred to the ICC the situation in Darfur. This referral resulted in an indictment of Sudanese President Omar al-Bashir for genocide, crimes against humanity and war crimes in 2008. [48] When the ICC President reported to the UN regarding its progress handling these crimes against humanity case, Judge Phillipe Kirsch said "The Court does not have the power to arrest these persons. That is the responsibility of States and other actors. Without arrests, there can be no trials. [49]

Council of Europe

The Committee of Ministers of the Council of Europe on 30 April 2002 issued a recommendation to the member states, on the protection of women against violence. In the section "Additional measures concerning violence in conflict and post-conflict situations", states in paragraph 69 that member states should: "penalize rape, sexual slavery, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity as an intolerable violation of human rights, as crimes against humanity and, when committed in the context of an armed conflict, as war crimes;" [50]

In the Explanatory Memorandum on this recommendation when considering paragraph 69:

Reference should be made to the Statute of the International Criminal Tribunal adopted in Rome in July 1998. Article 7 of the Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity, as crimes against humanity. Furthermore, Article 8 of the Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence as a serious breach of the Geneva Conventions and as war crimes. [51]

The Holodomor has been recognized as a crime against humanity by the European Parliament. [52]

20th century

On December 11, 1981, units from the Salvadoran Army killed 800 civilians, over half of them children, in the village of El Mozote. Victims Of The Mozote Massacre, Morazan, El Salvador, January 1982.jpg
On December 11, 1981, units from the Salvadoran Army killed 800 civilians, over half of them children, in the village of El Mozote.

Sources[ which? ] say the 20th century can be considered the bloodiest period in global history. [53] Millions of civilian infants, youngsters, adults, and elderly people died in warfare. One civilian perished for every combatant killed.[ citation needed ] Efforts of the International Committee of the Red Cross, humanitarian laws, and rules of warfare were not able to stop these[ which? ] crimes against humanity. These terminologies were invented since previous vocabulary was not enough to describe these offenses. War criminals did not fear prosecution, apprehension, or imprisonment before World War II. [54] Britain's Prime Minister Winston Churchill favored the outright execution of war criminals.[ citation needed ] The United States was more lenient and called for a just trial.[ citation needed ] The British Government was convinced to institute the Nuremberg Trial which left several legacies. These are worldwide jurisdiction for severe war crimes are, creation of international war crime tribunals, judicial procedures that documented history of colossal crimes effectively, and success of UN courts in holding impartial trials. [55]

The UN pointed out the Rome Statute of the International Criminal Court (ICC) specifically Article 7 (Crimes against Humanity which defines large-scale acts of violence against a locality's civilian populace. These acts consist of murder; annihilation; enslavement; bondage; forced removal of the population; imprisonment or deprivation of physical liberty that violates international laws; maltreatment; forced prostitution and rape; discrimination and tyranny against certain groups; apartheid (racial discrimination and segregation); and, other inhumane acts. [56] A publication from Trial International mentioned that crimes against humanity have been collated starting in 1990. These were the 1993 Statute of the International Criminal Tribunal for Yugoslavia, 1994 Statute of the International Tribunal for Rwanda, and 1998 Rome Statute of the International Criminal Court. The latter contains the latest and most extensive list of detailed crimes against civilians. [57]

See also

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A war crimes trial is the trial of persons charged with criminal violation of the laws and customs of war and related principles of international law committed during armed conflict.

Joint criminal enterprise concept in international criminal law

Joint criminal enterprise (JCE) is a legal doctrine used during war crimes tribunals to allow the prosecution of members of a group for the actions of the group. This doctrine considers each member of an organized group individually responsible for crimes committed by group within the common plan or purpose. It arose through the application of the idea of common purpose and has been applied by the International Criminal Tribunal for the former Yugoslavia to prosecute political and military leaders for mass war crimes, including genocide, committed during the Yugoslav Wars 1991–1999.

Atrocity crimes refer to the three legally defined international crimes of genocide, war crimes, and crimes against humanity. In 2017 the International Criminal Court (ICC) will be deciding upon whether or not to include crimes of aggression within their jurisdiction; effectively adding a fourth atrocity crime. These crimes are defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1949 Geneva Conventions and their 1977 Additional Protocols, and the 1998 Rome Statute of the International Criminal Court.

International Criminal Court investigation in the Democratic Republic of the Congo

The International Criminal Court investigation in the Democratic Republic of the Congo or the situation in the Democratic Republic of the Congo is an ongoing investigation by the International Criminal Court (ICC) into crimes committed in the Democratic Republic of the Congo (DRC) during the Second Congo War and its aftermath, including the Ituri and Kivu conflicts. The war started in 1998 and despite a peace agreement between combatants in 2003, conflict continued in the eastern parts of the country for several years. In April 2004 the government of the DRC formally referred the situation in the Congo to the International Criminal Court, and in June 2004, prosecutor Luis Moreno Ocampo, formally opened an investigation. To date, arrest warrants have been issued for:

International Criminal Court investigation in Darfur

The International Criminal Court investigation in Darfur or the situation in Darfur is an ongoing investigation by the International Criminal Court (ICC) into criminal acts committed during the War in Darfur. Although Sudan is not a state party to the Rome Statute, the treaty which created the ICC, the situation in Darfur was referred to the ICC's Prosecutor by the United Nations Security Council in 2005. As of 2012 seven suspects have been indicted by the court: Ahmed Haroun and Ali Kushayb, Omar al-Bashir, Bahar Abu Garda, Abdallah Banda and Saleh Jerbo, and Abdel Rahim Mohammed Hussein.

Whitney R. Harris World Law Institute

The Whitney R. Harris World Law Institute at Washington University School of Law serves as a center for instruction and research in international and comparative law.

Forced pregnancy is the practice of forcing a woman to become pregnant, often as part of a forced marriage, or as part of a programme of breeding slaves, or as part of a programme of genocide. When a forced pregnancy leads to reproduction, it is a form of reproductive coercion.

Prosecution of gender-targeted crimes is the legal proceedings to prosecute crimes such as rape and domestic violence. The earliest documented prosecution of gender-based/targeted crimes is from 1474 when Sir Peter von Hagenbach was convicted for rapes committed by his troops. However, the trial was only successful in indicting Sir von Hagenbach with the charge of rape because the war in which the rapes occurred was "undeclared" and thus the rapes were considered illegal only because of this. Gender-targeted crimes continued to be prosecuted, but it was not until after World War II when an international criminal tribunal- the International Military Tribunal for the Far East - were officers charged for being responsible of the gender-targeted crimes and other crimes against humanity. Despite the various rape charges, the Charter of the Tokyo Tribunal did not make references to rape, and rape was considered as subordinate to other war crimes. This is also the situation for other tribunals that followed, but with the establishments of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), there was more attention to the prosecution of gender-targeted crimes with each of the statutes explicitly referring to rape and other forms of gender-targeted violence.

Sexual violence includes, but is not limited to rape. Although there is no agreed upon definition of sexual violence, commonly applied ones encompass any act of a sexual nature or attempt to obtain a sexual act carried out through coercion. Sexual violence also includes physical and psychological violence directed at a person's sexuality, including unwanted comments or advances, or acts of traffic such as forced prostitution or sexual slavery.

References

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Further reading