W3 - Genocide and Crimes Against Humanity | Quizlet

art. 5 RS

Jurisdiction of the court shall be limited to the most serious crimes of concern to the international community as a whole:

The crime of genocide (article 6 Rome Statute)

Crimes against humanity (article 7 Rome Statute)

War crimes (article 8 Rome Statute)

The crime of aggression (article 8 bis Rome Statute)

the selected crimes are those in which state officials are specifically involved

Genocide under international law

- 1948 Genocide Convention art. II

- ICTY Statute art. 4

- Rome Statute art. 6

- Definition has changed throughout the years 

- Wider definition under ICTY

- More people are killed in internal conflicts of armed nature (civil wars) - crimes against humanity covers this 

- Rape added years later after advocacy from women’s rights NGOs (norm entreprenuers)  - why make this explicit? - in part bc of legal certainty (rights of the defendant)

art. 6 RS

the crime of genocide

various acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such

--> destroying a person as part of a group that the alleged perpetrator hates, a link to the group

actus reus:

a) killing

b) causing serious bodily or mental harm - incl. rape, sexual violence, torture (Rwanda) (Yugoslavia)

b) imposing conditions on the group calculated to

bring about its physical destruction

c) measures intended to prevent births within the group

d) forcibly transferring children from the group to another

group - castration, separating men and women

--> In whole or in part (e.g. killing only men is killing is part)

Mens rea: special intent / dolus specialis

intent to destroy the group, not just intent to kill (specific) individuals

= highest degree of intent

(Application of Genocide Convention)

Crimes against humanity under International law

- Principle VI (c ) of Principles of the Charter Nuremburg Tribunal

- Article 5 ICTY Statute

- Art 7 Rome Statute & elements of crime

art. 7 RS

crimes against humanity

various acts committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack

--> Single instance in an operation where there is collateral damage may not qualify.

actus reus:

a) murder

b) extermination

c) enslavement

....

k) other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health --> Jus generus clause, incl. trafficking, incitement or strong hate speech

means rea: knowledge of the attack / awareness / acceptance of a high degree of probability

genocide vs crimes against humanity

differences:

- genocide does not have to be widespread or systematic, there can be one person committing genocide unlike crimes against humanity

- genocide requires dolus specialis whilst crimes against humanity requires only knowledge / awareness

similarities

- can be committed in times of war and in times of peace

- both umbrella crimes encompassing a list of other crimes

crimes against humanity origin

- Law student from Lviv: Hersch Lauterpacht (1897–1960) coined the concept of "crimes against humanity" and promoted the protection of the individual under international law.

- Term covering atrocities against individuals on a large scale

- Become art. 6(c) of the Nuremberg charter

Hersch Lauterpacht

coined the concept of crimes against humanity

present at nuremberg trial? Yes

- was part of the UK prosecution team

genocide origin

- invented by Raphael Lemkin (1900-1959), also from Lviv law faculty, the 1944 book 'axis of occupied europe' is where the term first appeared

- Unlike Lauterpacht, his focus was not on the protection of individuals but on the protection of groups

Raphael Lemkin

invented the term genocide

present at nuremberg trial? No

- remained in the US, pushing for Genocide from afar (an example of a norm entrepreneur!)

Genocide and Nuremberg trial

- Genocide was the Nazi master plan

- but Nuremberg charter made no mention of genocide / destruction of groups, Lemkin constantly pressed for the crime of genocide to be included 

- US and UK against including it because of their respective treatment of african americans and colonies 

yet... Hans Frank (Hitler's lawyer) was charged on 3 counts, including crimes against humanity and genocide

Nuremberg trial significance

both crimes against humanity and genocide converged here for the first and were used for the first time in history (e.g. the indictment of Hans Frank)

tension between crimes against humanity/CAH and genocide

- Lemkin argued that the law must recognize that atrocities are almost always targeted at people because of their group membership

meaning: Nazis targeted people because they were jews (group identity was the very reason for the killing). A law that ignored this, treating each murder as just an individual crime, would miss the essential character of what happened.

- Lauterpacht feared that focusing on group identity would replace the "tyranny of the state with the tyranny of the group" and reinforce "them and us" mentalities

meaning: keep the individual as the fundamental legal unity, defining individuals based on their ethnic, religious, or national group would be hardening and permanently encoding the very identity categories that persecutors use

this risks: Reinforcing the "us and them" logic that makes atrocities possible in the first place — the idea that humanity is fundamentally divided into distinct groups with different interests

is there a hierarchy between crimes against humanity/genocide

according to Philippe Sands: a "hierarchy of horrors" has emerged where genocide is viewed as a more serious crime than crimes against humanity, which impacts how atrocities are reported and perceived globally

A hierarchy to an extent

genocide doesn't just kill people, attempts to erase a human group from existence entirely. There is something qualitatively different about an intent to destroy a people as such that feels categorically worse than even mass killing without that eliminatory purpose

higher threshold to be met for genocide - The higher the legal bar, the more serious the law treats the crime implicitly

- e.g. The forcible transfer of ukranian children to russia was NOT charged as genocide but as a CAH to avoid high threshold of special intent (dolus specialis)

no hierarchy to an extent

The RS of the ICC lists genocide, crimes against humanity, and war crimes as the three core crimes without ranking them (not the intention of drafters)

... a rhetorical hierarchy (genocide as uniquely stigmatized) sitting alongside a formal equality (identical sentencing, no treaty-based rank ordering)

ICTY jurisdiction case (1)

1. Prosecutor v Tadic --> ICTY jurisdiction

Srebrenica genocide cases (5)

1. Bosnia v Serbia and Montenegro/application of the genocide convention --> responsibility to prevent

2. Mothers of Srebrenica (NL) --> liability limited to 10% of damages

3. Mothers of Srebrenica (ECtHR) --> jurisdictional immunity of UN

4. Nuhanovic (NL) --> state responsibility for Dutchbat

5. Mustafic (NL) --> state responsibility for Dutchbat

genocide provisional measures cases (2)

1. The Gambia v. Myanmar (Rohinya genocide)

2. South Africa v Israel

Palestine cases (2)

1. ICC Palestine jurisdiction decision --> standing not based on statehood but as a state party to RS

+ German comment on ICC jurisdiction

2. South Africa v Israel --> provisional measures, genocide obligation erga omnes

Prosecutor v Tadic

--> ICTY jurisdiction

Facts:

- appellant appeals against jurisdiction based on; illegal foundation of the tribunal; wrongful primacy of int. tribunal over national courts; lack of jurisdiction ratione materiae

Art. 39 UNC: It is clear from this text that the Security Council plays a pivotal role and exercises a very wide discretion under this Article. But this does not mean that its powers are unlimited... §28

in determining the existence of a "threat to the peace" ...:

an armed conflict (or a series of armed conflicts) has been taking place in the territory of the former Yugoslavia since long before the decision of the SC to establish this International Tribunal. §30

even if it were considered merely as an "internal armed conflict", it would still constitute a "threat to the peace" according to the settled practice of the SC §30

What article of Chapter VII as a basis for the establishement of the tribunal? Prima facie, the International Tribunal matches perfectly the description in Article 41 of "measures not involving the use of force." §34 ...In sum, the establishment of the International Tribunal falls squarely within the powers of the Security Council under Article 41 §36

the SC has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security §37

the International Tribunal has been established in accordance with the appropriate procedures under the United Nations Charter and provides all the necessary safeguards of a fair trial. It is thus "established by law." §47

see also §40: definition of an armed conflict and application of humanitarian law

Bosnia v Serbia and Montenegro/application of the genocide convention

--> Srebrenica genocide / responsibility to prevent genocide

Question of law: whether the massacres committed at Srebrenica which constitute the crime in of genocide are attributable to the Respondent (Yugoslavia). §384

application of art. 4 ARSIWA §391-393

- persons/groups of persons/ entities may be equated with state organs even if that status does not follow from internal law, provided that in fact the persons or groups or entities act in ‘complete dependence’ on the state --> Threshold is very high / is exceptional

--> NOT attributable

application of art. 8 ARSIWA / reaffirmation of Effective Control test

- ICJ rejects application of "Overall Control test" §402-406

- NOT fulfilled: Decisions to kill the adult male population of the Muslim community in Srebrencia was taken by some member of the VRS main staff without instructions from or effective control by the FRY §413

Rule: obligation to prevent genocide under art. I GC

- State to employ all means reasonably available so as to prevent genocide as far as possible §430

- —  State does not incur responsibility because the desired result is not achieved but if the state manifestly failed to take all measures to prevent genocide which were within its power...

- obligation to prevent arises at the instant that the state learns of or should normally have learned of the existence of a serious risk that genocide will be committed §431

Complicity in genocide vs obligation to prevent:

- “complicity results from commission, violation of the obligation to prvent results from omission” (§432)

- ICJ says the FRY leadership and president were fully aware, there was a serious risk of genocide in Srebrencia, Respondent has not shown that it took any initiative to prevent what had happened or any action on its part to avert the atrocities §438

Mothers of Srebrenica (ECHR)

--> Srebrenica genocide / immunity of IOs (UN)

Facts:

- Whether the NL violated applicants right of access to court (art. 6(1) ECHR) by granting the UN immunity from domestic jurisdiction §137... no alternative to domestic courts to assert their rights against UN §132

(Applicable principles) The attribution of privileges and immunities to IOs is an essential means of ensuring the proper functioning of such organisations free from unilateral interference by individual governments. The immunity from jurisdiction commonly accorded by States to international organisations under the organisations’ constituent instruments ... is a long-stand practice...§139

Operations established by the UN SC resolutions under Chapter VII of the UNC are fundamental to the mission of the UN to secure int. peace and security, the Convention cannot be interpreted in a manner which would subject the acts and omissions of the SC to domestic jurisdiction without the accord of the UN ... would be to allow individual States, through their courts, to interfere with the fulfilment of the key mission of the UN in this field §154

International law does not support the position that a civil claim should override immunity from suit for the sole reason that it is based on an allegation of a particularly grave violation of a norm of international law, even a norm of ius cogens. In respect of the sovereign immunity of foreign States this has been clearly stated by the ICJ §158

the Court to find that in the present case the grant of immunity to the United Nations served a legitimate purpose and was not disproportionate. §169

rule: procedural immunity takes precedence, even when gross violations of human rights (such as genocide) are alleged.

Stichting Mothers of Srebrenica (NL)

--> Srebrenica genocide

Facts:

- foundation seeking to hold state liable for the acts and omissions of Dutchbat in failing to protect the population of Bosnian muslims

Assessment of the principal appeal:

whether Dutchbat's command knew or reasonably ought to have known .... that there was a real risk of the rights of the Bosnian refugees protected by Articles 2 and 3 ECHR being violated and if so, whether Dutchbat failed to take the measures that it reasonably could have been expected to take in order to avoid that risk?

Dutchbat's command knew or reasonably ought to have known at the time of the evacuations ... that there was a real risk that the Bosnian Serbs would violate the rights to life and to physical integrity of the male refugees. 4.4.1.

Wrongful for Dutchbat to continue to cooperate in the evacuation of the refigees? - No ('given the war situation'...) 4.5.4

Wrongful for Dutchbat not to have offered a choice to the male refugees inside the compound? - Yes (Dutchbat had sufficient opportunities to explain to the male refugees who were inside the compound the risk they would run upon leaving) 4.6.6. - 4.6.8.

was there a real chance that the male refugees, had they stayed behind in the compound could have escaped falling into the hands of the Bosnian Serbs? - originally a 30% chance given by court of appeal: The chance that the male refugees, had they been offered this choice, would have escaped the Bosnian Serbs was small, but not negligible. That chance is estimated at 10%. This is why the liability of the State is limited to 10% of the damage suffered by the surviving relatives of these male refugees.

=  realist reasoning, imposing full liability on a state would have consequences for other states not wanting to participate in peacekeeping, potentia; ‘chilling effect’

Nuhanovic case

--> Srebrenica genocide / state responsibility

Facts:

- N employed by the UN (interpreter at the Dutchbat compound). Had a UN pass & on the personnel list to be evacuated.

- Dutchbat troops had received reports that the Bosnian-serbs were committing crimes against male refugees

- N's mother and brother sought refuge in the compound, told were not on the personnel list & had to leave compound. Murdered after by the Bosnian-Serb army

Dutchbat's conduct attributed to the state

- art. 6-7 jo. art. 48(1) DARIO (draft articles on the responsibility of IOs) do not necessarily mean that conduct must be exclusively attributed to an IO, leaves open the possibility of dual attribution (state and IO)

- art. 7 DARIO applies (state troops at disposal of UN in a peace mission where command & control is transferred to UN but discplinary and criminal jurisdiction remains w sending state) --> even if UN had effective control over Dutchbat, would not mean it has exclusive responsibility

- Dutch gov had effective control over Dutchbat's conduct in the compound ('factual control over the specific conduct') & was closely involved in the evacuation of Dutchbat and refugees ... could have prevented conduct in question

Dutchbat's conduct was wrongful

- based on right to life and prohibition of inhuman treatment (art. 2-3 ECHR; art. 6-7 ICCPR)

- NL was competent through Dutchbat to exercise jurisdiction within the meaning of art. 1 ECHR (exceptional extraterritorial jurisdiction)

Mustafic case

--> Srebrenica genocide / state responsibility

Facts:

- M worked as an electrician in the Dutchbat compound (employment seconded by Srebrenica municipality)

- M and his family sought refuge in the compound. M and his family told to leave the compound. Murdered after by the Bosnian-Serb army.

Dutchbat's conduct attributed to the state

- art. 6-7 jo. art. 48(1) DARIO leave open the possibility of dual attribution (state and IO)

- art. 7 DARIO applies (state troops at disposal of UN in a peace mission where command & control is transferred to UN but discplinary and criminal jurisdiction remains w sending state) --> even if UN had effective control over Dutchbat, would not mean it has exclusive responsibility

- Dutch gov had effective control over Dutchbat's conduct in the compound ('factual control over the specific conduct') & was closely involved in the evacuation of Dutchbat and refugees ... could have prevented conduct in question

Dutchbat's conduct was wrongful

- based on right to life and prohibition of inhuman treatment (art. 2-3 ECHR; art. 6-7 ICCPR)

- NL was competent through Dutchbat to exercise jurisdiction within the meaning of art. 1 ECHR (exceptional extraterritorial jurisdiction)

ICJ provisional measures Gambia v Myanmar

--> Genocide provisional measures

Facts

- Gambia instituted proceedings against Myanmar concerning alleged violations of the convention, application contained a request for the indication of provisional measures

1. the rights whose protection is sought and the link between such rights and the measures requested

- Court may exercise [power to impose provisional measures] only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible. Moreover, a link must exist between the rights whose protection is sought and the provisional measures being requested

- the rights claimed by The Gambia and for which it is seeking protection ... namely the right of the Rohingya group in Myanmar and of its members to be protected from acts of genocide... and the right of The Gambia to seek compliance by Myanmar with its obligations not to commit, and to prevent and punish genocide in accordance with the Convention are plausible.

- the first three provisional measures sought by The Gambia are aimed at preserving the rights it asserts...

2. risk of irreparable prejudice and urgency

- ICC has the power to indicate provisional measures when irreparable prejudice could be caused to rights ... or when the alleged disregard of such rights may entail irreparable consequences, and that this power is exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused before the Court gives its final decision.

- the Court considers that ... the right of the Rohingya group in Myanmar and of its members to be protected ... are of such a nature that prejudice to them is capable of causing irreparable harm

- The Court finds that there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia,

South Africa v Israel

--> Genocide provisional measures / Palestine

Facts:

South Africa files proceedings against Israel concerning alleged violations in the Gaza Strip of obligations under the Convention on the Prevention and Punishment of the Crime of Genocide

Findings:

standing of SA: the common interest in compliance with the relevant obligations under the Genocide Convention entails that any State party, without distinction, is entitled to invoke the responsibility of another State party for an alleged breach of its obligations erga omnes partes.  §33-34

risk of irreparable prejudice and urgency: provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision.

- namely the right of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited acts identified in Article III of the Genocide Convention and the right of SA to seek Israel’s compliance with the latter’s obligations under the Convention, are of such a nature that prejudice to them is capable of causing irreparable harm §66

- there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision. §74

measures to be adopted: §78-82

Palestine as a state party (ICC Palestine jurisdiction decision)

--> Genocide/ Palestine

Facts

- Prosecutor of the view that the ICC's jurisdiction extends to the Palestinian territory occupied by Israel --> submits jurisdictional question to ICC under art. 19(3) §23

whether Palestine can be considered ‘[t]he State on the territory of which the conduct in question occurred’ within the meaning of article 12(2)(a)? §87; §89; §91

- Prosecutor: Palestine is a “State” for the purpose of article 12(2)(a) because of its status as an ICC State Party’ §89

- ordinary meaning of art. 12(2)(a): refers to state party to the statute, does not require whether entity fulfils the prerequisites of statehood under general international law §92

- seven States Parties submitted observations ... However, it should be noted that these States remained silent during the accession process and that none of them challenged Palestine’s accession before the Assembly of State Parties at that time or later §101

- Consequently, regardless of Palestine’s status under general international law, its accession to the Statute followed the correct and ordinary procedure, as provided under article 125(3) of the Statute §102

- it would indeed be contradictory to allow an entity to accede to the Statute and become a State Party, but to limit the Statute’s inherent effects over it §102

the reference to ‘[t]he State on the territory of which the conduct in question occurred’ in article 12(2)(a) of the Statute cannot be taken to mean a State fulfilling the criteria for statehood under general international law. Such a construction would exceed the object and purpose of the Statute... §106

rule:‘[t]he State on the territory of which the conduct in question occurred’ in article 12(2)(a) of the Statute must be interpreted as a reference to a State Party to the Statute. §109-§112

Jurisdiction over Palestine (ICC Palestine jurisdiction decision)

--> Genocide/ Palestine

Facts

- Prosecutor of the view that the ICC's jurisdiction extends to the Palestinian territory occupied by Israel --> submits jurisdictional question to ICC under art. 19(3) §23

Territorial Jurisdiction over Palestine

disputed borders have never prevented a State from becoming a State Party to the Statute and, as such, cannot prevent the Court from exercising its jurisdiction. §115

[based on UNGA resolutions on Palestine]: the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem. §118

the Palestinian right to self-determination within the Occupied Palestinian Territory has been explicitly recognised by different bodies §121-§123

German comment on ICC Palestine

Contrary to Germany’s observations, Pre-Trial Chamber I did not consider the question of Palestinian statehood determinative of the Court’s territorial jurisdiction in Palestine.

The term “State” in Article 12(2)(a) of the Statute was to be interpreted in conformity with the chapeau of Article 12(2) of the Statute as referring to a “State Party to the Statute” and not to a “State fulfilling the criteria for statehood under general international law.”

 the ICC and its Office of the Prosecutor do not have jurisdiction because of Palestine’s lack of statehood in international law. A Palestinian State and the determination of its territorial borders can […] only be achieved through direct negotiations between Israelis and Palestinians.”

critique of German comment on ICC Palestine

Declaring that “the court has no jurisdiction”, when it just ruled that it had, undermines the authority of the ICC and the international criminal justice system. By its statement, Germany in effect denied the Court the competence to authoritatively rule on its own competence

Germany does not accept the ICC’s interpretation of Article 12(2)(a) of the Statute, insisting that the Court does not have territorial jurisdiction “because of Palestine’s lack of statehood in international law”. This contradicts the Court’s clear finding that its jurisdiction did not depend on the question of Palestine’s statehood in general international law.

Germany joins a growing number of States which keep on insisting on their legal position despite contrary rulings by international courts and tribunals. One can only speculate what this will mean for Germany’s obligation to cooperate with the ICC if the Court, for example, requested the arrest and surrender of a person sought for war crimes committed in Gaza and the West Bank, including East Jerusalem

there is no foundation for a two-tier system of State Parties – those which can transfer their criminal jurisdiction to the Court and those that cannot. The purpose of Article 12 (2)(a) of the Statute is to set out the preconditions for the exercise of jurisdiction by the Court, not to limit the exercise of jurisdiction to those State Parties that are States in terms of general international law