Extermination (crime)

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The Nuremberg trial verdict convicts many defendants of crimes against humanity for the extermination of Europe's Jewish population. Pictured: mass shooting outside the Mizocz ghetto, 14 October 1942. German officer executes Jewish women who survived a mass shooting outside the Mizocz ghetto, 14 October 1942.jpg
The Nuremberg trial verdict convicts many defendants of crimes against humanity for the extermination of Europe's Jewish population. Pictured: mass shooting outside the Mizocz ghetto, 14 October 1942.

Extermination is a crime against humanity that consists of "the act of killing on a large scale". [2] To be convicted of this crime, someone must play a role in a sufficiently-large scale killing of civilians, including those carried out by "the intentional infliction of conditions of life... calculated to bring about the destruction of part of a population". [3] It was first prosecuted at the International Military Tribunal in Nuremberg, and was included in the enumerated crimes against humanity in the Rome Statute.

Contents

History

Exhumation of victims of murders at Brcko, Bosnia and Herzegovina, found to form the crime of extermination by the ICTY in the Stojan Zupljanin judgement ICTY - Brcko exhumation, 1997, img 02.jpg
Exhumation of victims of murders at Brčko, Bosnia and Herzegovina, found to form the crime of extermination by the ICTY in the Stojan Župljanin judgement

Extermination was listed as a crime against humanity in the Nuremberg charter (as well as the charter for the Tokyo trial) and was first tried at the International Military Tribunal in 1945. [4] [5] Czech jurist Egon Schwelb argued that the purpose of its inclusion, alongside murder, was to enable the prosecution of perpetrators too remote from the act of killing to be charged as murder. [6] [5] Following these prosecutions, it was generally accepted to have become part of customary international law. [7] It was codified into the Rome Statute in 1998. [2]

The UN-backed International Criminal Tribunal for the former Yugoslavia (ICTY) convicted several people for extermination related to the Bosnian War, including Milan Lukić for Višegrad massacres, [8] Vujadin Popović, Ljubiša Beara [9] and Radovan Karadžić for the Srebrenica massacre, [10] as well as Stojan Župljanin. [11]

Specifically, in the Župljanin judgement, the ICTY found that the criteria for the crime of extermination was met in the cases of Ključ on 10 July 1992 (killing of at least 144 people in Biljani), Prijedor ethnic cleansing between 24 May and August 1992 (killing of 800 people in Kozarac), Brčko in May 1992 (killing of 250 people), Zvornik massacre on 30 May 1992 (killing of 85 people), Banja Luka on 7 July 1992 (killing of 20 people), Vlasenica on 2 June 1992 (killing 20 people in Drum), Kotor Varoš on 25 June 1992 (killing of 26 people). [12]

The Independent International Commission of Inquiry on the Occupied Palestinian Territories issued a report in 2024 stating that the Israeli destruction of the Gaza Strip healthcare system constituted the crime of extermination. [13]

Elements

Like other crimes against humanity, extermination must be "committed as part of a widespread or systematic attack directed against any civilian population", but can occur in peacetime as well as wartime (unlike war crimes). [14] [15] Similar to other international crimes, extermination includes both an actus reus (an act of large-scale killing) and mens rea (the intent to participate in this action). [16] The definition of the crime according to the Rome Statute is mostly aligned with that of customary international law. According to William Schabas and other jurists, the only difference from customary international law was to specify that the crime of extermination includes [2] "the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population" [3] —phrasing that Schabas argues was inspired by one of the elements of the crime of genocide, [2] "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." [17]

Actus reus

The perpetrator's action must have composed part of a large-scale killing, whether one that took place at one time or one location, or a series of incidents that accumulate to sufficient massiveness. [18] A plan or policy is not necessary. [16] Separate incidents must be sufficiently connected to each other to be understood as one operation. [19] There is no minimum size threshold for the crime; it is assessed based on the circumstances, although case law has recognized incidents ranging from dozens to thousands of victims. [20] The collective nature of the crime is satisfied by being of sufficient scale. The victims may be targeted as individuals, and it is not required that the crime target a particular group of civilians or aim at the extermination of part of this group. [21] (Similar acts not connected to large-scale killing are likely to count as the crime against humanity of murder instead). [22] Playing a role in the part of killing at least one person as part of a mass killing event is sufficient, [23] although the prosecution does not need to prove that the accused caused the death of any particular person. The accused's role might be commission, omission, or a combination of both; encouragement, assistance, or indirect planning. [24] The method of killing is not relevant; it could be carried out indirectly, for example depriving civilians of food or medicine, "creating a humanitarian crisis", blocking aid delivery, forcing people on a death march, or refusing shelter. [3]

Mens rea

The accused must have intended to engage in large scale killings, or to subject a large number of people to conditions that would be likely to cause their deaths. [25] It is not required that the accused personally intended to kill on a large scale if it can be proven that their action was committed with the knowledge that it formed part of a sufficiently large-scale killing event. [26] This might be proved by various means, such as large-scale logistics needed for certain types of killing. [27] The motives for committing the crime are irrelevant; [28] unlike persecution, discriminatory intent is not required. [29]

Comparison with other international crimes

Extermination (as well as the crime against humanity of murder) is similar to genocide, and could cover the same events. [30] [31] Unlike genocide, extermination as a crime against humanity is not required to be committed with intent to destroy an ethnic, religious, or national group. [32] [31] Extermination is a crime committed against individuals, although on a large scale. [33]

The same underlying events might support a prosecution for extermination as well as the war crime of starvation. [15]

Related Research Articles

<span class="mw-page-title-main">Crimes against humanity</span> Concept in international law

Crimes against humanity are certain serious crimes committed as part of a large-scale attack against civilians. Unlike war crimes, crimes against humanity can be committed during both peace and war and against a state's own nationals as well as foreign nationals. Together with war crimes, genocide, and the crime of aggression, crimes against humanity are one of the core crimes of international criminal law and, like other crimes against international law, have no temporal or jurisdictional limitations on prosecution.

<span class="mw-page-title-main">Srebrenica massacre</span> 1995 mass murder by the Bosnian Serb Army

The Srebrenica massacre, also known as the Srebrenica genocide, was the July 1995 genocidal killing of more than 8,000 Bosniak Muslim men and boys in and around the town of Srebrenica during the Bosnian War. It was mainly perpetrated by units of the Bosnian Serb Army of Republika Srpska under Ratko Mladić, though the Serb paramilitary unit Scorpions also participated. The massacre was the first legally recognised genocide in Europe since the end of World War II.

<span class="mw-page-title-main">Bosnian genocide</span> Murder of Bosniaks and Bosnian Croats during the Bosnian War

The Bosnian genocide took place during the Bosnian War of 1992–1995 and included both the Srebrenica massacre and the wider crimes against humanity and ethnic cleansing campaign perpetrated throughout areas controlled by the Army of Republika Srpska (VRS). The events in Srebrenica in 1995 included the killing of more than 8,000 Bosniak men and boys, as well as the mass expulsion of another 25000–30000 Bosniak civilians by VRS units under the command of General Ratko Mladić.

<span class="mw-page-title-main">Momčilo Krajišnik</span> Bosnian Serb politician (1945–2020)

Momčilo Krajišnik was a Bosnian Serb political leader and convicted war criminal, who along with Radovan Karadžić co-founded the Bosnian Serb nationalist Serb Democratic Party (SDS). Between 1990 and 1992, he was speaker of the People's Assembly of Republika Srpska. Between June and December 1992, Krajišnik also served as a member of the expanded Presidency of Republika Srpska. After the Bosnian War, he was elected Serb member of the tripartite Presidency of Bosnia and Herzegovina in the September 1996 election and served in that post from October 1996 until October 1998. He lost his bid for re-election in 1998 to Živko Radišić.

<span class="mw-page-title-main">Manjača camp</span> Serbian concentration camp during the Bosnian War

Manjača was a concentration camp which was located on mount Manjača near the city of Banja Luka in northern Bosnia and Herzegovina during the Bosnian War and the Croatian War of Independence from 1991 to 1995. The camp was founded by the Yugoslav People's Army (JNA) and authorities of the Republika Srpska (RS) and was used to collect and confine thousands of male prisoners of Bosniak and Croat nationalities.

Stojan Župljanin is a former Bosnian Serb police commander.

<span class="mw-page-title-main">Bruno Stojić</span>

Bruno Stojić is a Bosnian Croat politician convicted by the International Criminal Tribunal for the former Yugoslavia (ICTY). His trial, joined with five co-accused Bosnian-Croat politicians active in the Croatian Republic of Herzeg-Bosnia wartime entity, ended with him being found guilty and sentenced to 20 years in prison.

<span class="mw-page-title-main">Milan Lukić</span> Bosnian Serb war criminal (born 1967)

Milan Lukić is a Bosnian Serb war criminal who led the White Eagles paramilitary group during the Bosnian War. He was found guilty by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in July 2009 of crimes against humanity and violations of war customs committed in the Višegrad municipality of Bosnia and Herzegovina during the Bosnian war and sentenced to life in prison.

<span class="mw-page-title-main">Višegrad massacres</span> 1992 mass murder of Bosniak civilians

The Višegrad massacres were acts of mass murder committed against the Bosniak civilian population of the town and municipality of Višegrad during the ethnic cleansing of eastern Bosnia by Republika Srpska police and military forces during the spring and summer of 1992, at the start of the Bosnian War.

<span class="mw-page-title-main">Joint criminal enterprise</span> 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 (ICTY) to prosecute political and military leaders for mass war crimes, including genocide, committed during the Yugoslav Wars 1991–1999.

<span class="mw-page-title-main">Prijedor ethnic cleansing</span>

During the Bosnian War, there was an ethnic cleansing campaign committed by the Bosnian Serb political and military leadership – Army of the Republika Srpska, mostly against Bosniak and Croat civilians in the Prijedor region of Bosnia and Herzegovina in 1992 and 1993. The composition of non-Serbs was drastically reduced: out of a population of 50,000 Bosniaks and 6,000 Croats, only some 6,000 Bosniaks and 3,000 Croats remained in the municipality by the end of the war. Apart from the Srebrenica massacre, Prijedor is the area with the second highest rate of civilian killings committed during the Bosnian War. According to the Sarajevo-based Research and Documentation Center (IDC), 4,868 people were killed or went missing in the Prijedor municipality during the war. Among them were 3,515 Bosniak civilians, 186 Croat civilians and 78 Serb civilians. As of October 2013, 96 mass graves have been located and around 2,100 victims have been identified, largely by DNA analysis.

An atrocity crime is a violation of international criminal law that falls under the historically three legally defined international crimes of genocide, war crimes, and crimes against humanity. Ethnic cleansing is widely regarded as a fourth mass atrocity crime by legal scholars and international non-governmental organizations (NGOs) working in the field, despite not yet being recognized as an independent crime under international law.

<span class="mw-page-title-main">Zvornik massacre</span> 1992 mass killing during the Bosnian War

The Zvornik massacre refers to acts of mass murder and violence committed against Bosniaks and other non-Serb civilians in Zvornik by Serb paramilitary groups at the beginning of the Bosnian War in 1992. It was part of a wider campaign of ethnic cleansing in the Bosnian War: by one estimate, 40,000 Bosniaks were expelled from the Zvornik district.

<span class="mw-page-title-main">Doboj ethnic cleansing (1992)</span> War crimes committed against Bosniaks and Croats in the Doboj area

The Doboj ethnic cleansing refers to war crimes, including murder, forced deportation, persecution and wanton destruction, committed against Bosniaks and Croats in the Doboj area by the Yugoslav People's Army and Serb paramilitary units from May until September 1992 during the Bosnian war. On 26 September 1997, Serb soldier Nikola Jorgić was found guilty by the Düsseldorf Oberlandesgericht on 11 counts of genocide involving the murder of 30 persons in the Doboj region, making it the first Bosnian Genocide prosecution. The International Criminal Tribunal for the former Yugoslavia (ICTY) classified it as a crime against humanity and sentenced seven Serb officials.

<span class="mw-page-title-main">Ethnic cleansing in the Bosnian War</span> Deportations and persecutions that occurred during the Yugoslav Wars

Ethnic cleansing occurred during the Bosnian War (1992–95) as large numbers of Bosnian Muslims (Bosniaks) and Bosnian Croats were forced to flee their homes or were expelled by the Army of Republika Srpska and Serb paramilitaries. Bosniaks and Bosnian Serbs had also been forced to flee or were expelled by Bosnian Croat forces, though on a restricted scale and in lesser numbers. The UN Security Council Final Report (1994) states while Bosniaks also engaged in "grave breaches of the Geneva Conventions and other violations of international humanitarian law", they "have not engaged in "systematic ethnic cleansing"". According to the report, "there is no factual basis for arguing that there is a 'moral equivalence' between the warring factions".

<span class="mw-page-title-main">Trial of Slobodan Milošević</span> UN Criminal Tribunals trial of Yugoslavias dictator during the Yugoslav Wars

The war crimes trial of Slobodan Milošević, the former President of the Federal Republic of Yugoslavia, at the International Criminal Tribunal for the former Yugoslavia (ICTY) lasted for just over four years from 2002 until his death in 2006. Milošević faced 66 counts of crimes against humanity, genocide, and war crimes committed during the Yugoslav Wars of the 1990s. He pleaded not guilty to all the charges.

<span class="mw-page-title-main">Bosnian genocide denial</span> Denial of Bosnian genocide

Bosnian genocide denial is the act of denying the occurrence of the systematic genocide against the Bosniak Muslim population of Bosnia and Herzegovina, or asserting it did not occur in the manner or to the extent that has been established by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Court of Justice (ICJ) through proceedings and judgments, and described by comprehensive scholarship.

<span class="mw-page-title-main">Alexis Demirdjian</span> Canadian attorney

Alexis Demirdjian is a Canadian attorney, currently serving as a Trial Lawyer for the Office of the Prosecutor at the ICC since 2015. He previously worked as a trial attorney at the ICTY's Office of the Prosecutor in The Hague. He was also part of the defence team of General Enver Hadzihasanovic between 2002 and 2005. He graduated from the Université du Québec à Montréal with a Masters in international law, after having completed his law degree (LL.B.) from the Université de Montréal. He is a member of the Barreau du Québec since 2003.

<span class="mw-page-title-main">Incitement to genocide</span> Crime under international law

Incitement to genocide is a crime under international law which prohibits inciting (encouraging) the commission of genocide. An extreme form of hate speech, incitement to genocide is an inchoate offense and is theoretically subject to prosecution even if genocide does not occur, although charges have never been brought in an international court without mass violence having occurred. "Direct and public incitement to commit genocide" was forbidden by the Genocide Convention in 1948. Incitement to genocide is often cloaked in metaphor and euphemism and may take many forms beyond direct advocacy, including dehumanization and accusation in a mirror.

<span class="mw-page-title-main">Bosanski Šamac ethnic cleansing</span>

The Bosanski Šamac ethnic cleansing refers to war crimes, including murder, looting, ethnic cleansing and persecution committed against Bosniaks and Croats in the Bosanski Šamac area by the Yugoslav People's Army and Serb paramilitary units from 17 April until November 1992 during the Bosnian war. The area was later incorporated into the newly formed proto-state Republika Srpska.

References

  1. ↑ IMT verdict, passim
  2. 1 2 3 4 Mettraux 2020, p. 388.
  3. 1 2 3 Mettraux 2020, p. 402.
  4. ↑ Mettraux 2020, p. 383.
  5. 1 2 Schwelb, Egon (1946). "Crimes against Humanity". British Yearbook of International Law. 23: 178.
  6. ↑ Mettraux 2020, pp. 383–384.
  7. ↑ Mettraux 2020, p. 384.
  8. ↑ "Bosnian Serb cousins convicted by UN tribunal over horrific burnings". UN News. 20 July 2009.
  9. ↑ "UN tribunal jails two Bosnian Serbs for life over Srebrenica massacre". UN News. 10 June 2010.
  10. ↑ "UN welcomes 'historic' guilty verdict against Radovan Karadžić". UN News. 24 March 2016.
  11. ↑ "Mićo Stanišić and Stojan Župljanin sentenced for crimes in Bosnia and Herzegovina". ICTY. 27 March 2013.
  12. ↑ "The Prosecutor v. Mićo Stanišić & Stojan Župljanin - Judgement" (PDF). International Criminal Tribunal for the former Yugoslavia. The Hague. 27 March 2013. pp. 261−262. Archived (PDF) from the original on 18 May 2013.
  13. ↑ Kennedy, Niamh; Darwish, Muhammad. "UN inquiry accuses Israel of 'crime of extermination' through deliberate destruction of Gaza's health care system". CNN. Retrieved 13 October 2024.
  14. ↑ "United Nations Office on Genocide Prevention and the Responsibility to Protect". www.un.org. Retrieved 12 February 2024.
  15. 1 2 Mettraux 2020, p. 411.
  16. 1 2 Mettraux 2020, p. 386.
  17. ↑ Drumbl, Mark A. (2011). "The crime of genocide". Research Handbook on International Criminal Law. Edward Elgar Publishing. ISBN   978-0-85793-322-5.
  18. ↑ Mettraux 2020, p. 391.
  19. ↑ Mettraux 2020, pp. 391–394.
  20. ↑ Mettraux 2020, p. 390.
  21. ↑ Mettraux 2020, pp. 395–396.
  22. ↑ Murray 2011, p. 600.
  23. ↑ Mettraux 2020, pp. 398–399.
  24. ↑ Mettraux 2020, p. 400.
  25. ↑ Mettraux 2020, p. 404.
  26. ↑ Mettraux 2020, p. 405.
  27. ↑ Mettraux 2020, pp. 402, 408.
  28. ↑ Mettraux 2020, p. 408.
  29. ↑ Mettraux 2020, p. 407.
  30. ↑ Mettraux 2020, pp. 403, 409.
  31. 1 2 Murray, Alexandar R. J. (2011). "Does International Criminal Law Still Require a Crime of Crimes: A Comparative Review of Genocide and Crimes against Humanity". Goettingen Journal of International Law. 3: 600–602.
  32. ↑ Ratner, Steven R. (2007). "Can We Compare Evils - The Enduring Debate of Genocide and Crimes against Humanity". Washington University Global Studies Law Review. 6: 583.
  33. ↑ Mettraux 2020, p. 409.

Sources

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