THE TERM "GENOCIDE"
The term "genocide" did not exist before 1944. It is a very specific term, referring to violent crimes committed against groups with the intent to destroy the existence of the group. Human rights, as laid out in the U.S. Bill of Rights or the 1948 United Nations Universal Declaration of Human Rights, concern the rights of individuals.
In 1944, a Polish-Jewish lawyer named Raphael Lemkin (1900-1959) sought to describe Nazi policies of systematic murder, including the destruction of the European Jews. He formed the word "genocide" by combining geno-, from the Greek word for race or tribe, with -cide, from the Latin word for killing.
In proposing this new term, Lemkin had in mind "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 next year, the International Military Tribunal held at Nuremberg, Germany, charged top Nazis with "crimes against humanity." The word “genocide” was included in the indictment, but as a descriptive, not legal, term.
THE CRIME OF GENOCIDE:
On December 9, 1948, in the shadow of the Holocaust and in no small part due to the tireless efforts of Lemkin himself, the United Nations approved the Convention on the Prevention and Punishment of the Crime of Genocide.
This convention establishes "genocide” as an international crime, which signatory nations “undertake to prevent and punish.” It defines genocide as:
Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) 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.
While many cases of group-targeted violence have occurred throughout history and even since the Convention came into effect, the legal and international development of the term is concentrated into two distinct historical periods: the time from the coining of the term until its acceptance as international law (1944-1948) and the time of its activation with the establishment of international criminal tribunals to prosecute the crime of genocide (1991-1998).
Preventing genocide, the other major obligation of the convention, remains a challenge that nations and individuals continue to face.
Crimes against Humanity:
Crimes against humanity, as defined by the Rome Statute of the International Criminal Court Explanatory Memorandum, "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.
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 falling into the category of crimes under discussion."
Historical Development:
In 1860 the American National Republican Convention included in their electoral platform, on which Abraham Lincoln stood for President, the following statement: "... We brand the recent re-opening of the African slave trade, under the cover of our national flag, aided by perversions of judicial power, as a crime against humanity".
In 1890, George Washington Williams used the phrase to describe the treatment of Africans in the Congo Free State under King Leopold II of Belgium. Another very significant early use of the phrase "crimes against humanity" came during the first world war when, on May 24, 1915, the Allies of World War I, Britain, France, and Russia, jointly issued a statement explicitly announcing, for the first time, the commission of a "crime against humanity" in response to the Armenian Genocide and warned of personal responsibility for members of the Ottoman Government and their agents.
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.
Nuremberg Trials:
In the aftermath of the Second World War, The London Charter of the International Military Tribunal was the decree that set down the laws and procedures by which the post-World War II Nuremberg trials were to be conducted.
The drafters of this document were faced with the problem of how to respond to the Holocaust and 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 in paragraph 6.c, 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".
In the Judgment of the International Military Tribunal for the Trial of German Major War Criminals it was also stated:
The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.
Tokyo Trials:
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 World War II.
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.
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).
But in the Tokyo Trial, Crimes against Humanity (Class C) was not applied for any Suspect of War Crime. Sometimes Nanking Massacre is considered to be applied by "the Crime against Humanity", but in fact, Nanking Massacre was prosecuted for infringement upon the Laws of War and not applied by "the Crime against Humanity".
War crimes charges against more junior personnel were dealt with separately, in other cities throughout Far East Asia, such as the Nanjing War Crimes Tribunal and the Khabarovsk War Crimes Trials.
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.
The Charter of the United Nations (Article 13, 14, 15) makes actions of the General Assembly advisory to the Security Council. 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.
The ICC:
The United Nations has been primarily responsible for the prosecution of crimes against humanity since it was chartered in 1948. The International Criminal Court (ICC) was organized by the Rome Statute and the UN has delegated several crimes against humanity cases to the ICC.
Because these cases were referred to the ICC by the UN, the ICC has broad authority and jurisdiction for these cases. The ICC acting without a UN referral lacks the broad jurisdiction to prosecute crimes against humanity, and cannot prosecute many cases, particularly if they occur outside of ICC-member nations.
The most recent 2005 UN referral to the ICC of Darfur resulted in an indictment of Sudanese President Omar al-Bashir for genocide, crimes against humanity and war crimes in 2008. The first person to be handed over to the ICC was Thomas Lubanga. His trial has since been completed. He was found guilty as charged. The ICC is still seeking Joseph Kony of Uganda.
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. The UN has not referred any further crimes against humanity cases to the ICC since March 2005.
A report on the 2008-9 Gaza War accused Palestinian and Israeli forces of possibly committing a crime against humanity.
UN Security Council responsibility:
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". The resolution commits the Council to action to protect civilians in armed conflict.
International Criminal Court:
In 2002, the International Criminal Court-ICC was established in The Hague, The 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 and 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:(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.
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;"
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.
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'".
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