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There, at Auschwitz, something happened that could not previously have been imagined. There people touched the profound layer of solidarity between all those who have a human face, the essence of the relationship between man and man. . . . Auschwitz transformed the conditions of permanence in relations between human beings. Jürgen Habermas, German sociologist (1929- ) |
War crimes
presuppose combat between nations. Genocide and crimes against humanity, on the other
hand, may be committed during conflicts within states. An international criminal
court to try these offences is in the works.
Crimes
against humanity
The first definition
of these crimes was given in the Charter of the International Military Tribunal set
up by the Allies to prosecute the major Nazi war criminals (the Nuremberg Tribunal)
in 1945. It runs as follows: “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.”
The United Nations Convention on the Non-Applicability of Statutory Limitations to
War Crimes and Crimes Against Humanity of 1968 added the following provision: “eviction
by armed attack or occupation and inhuman acts resulting from the policy of apartheid,
and the crime of genocide.”
Genocide
This term coined by
Raphael Lemkin, a Polish-born American scholar, comes from the Greek word genos (race
or tribe) and the Latin suffix cide (from caedere, to kill).
Regarded as the most serious crime against humanity, it was legally defined by the
Convention for the Prevention and Punishment of the Crime of Genocide, which was
unanimously adopted by the United Nations General Assembly on December 9, 1948, entered
into force in 1951, and has so far been ratified by 130 states. Three major conditions
for the identification of genocide (article 2) are:
1) The victims must belong to a national, ethnical, racial or religious group, as
such. Political, economic or cultural groups (e.g. the victims of the Khmer Rouge
in Cambodia) are thus
excluded.
2) The members of this group are killed or persecuted because of their membership
of the group.
3) Genocide is a planned collective crime committed by those who hold state power,
on their behalf or with their express or tacit consent.
Article 3 defines as punishable acts: genocide; conspiracy to commit genocide; direct
and public incitement to commit genocide; an attempt to commit genocide; and complicity
in genocide.
Article 4 stipulates that all persons committing genocide shall be punished, whether
they are constitutionally responsible rulers, public officials or private individuals.
The
International Criminal Court (ICC)
The notion of an international
penal tribunal is mentioned in the 1948 Genocide Convention. But it was not until
1998 that 120 countries (out of 160 participants) meeting in Rome adopted a statute
for a permanent International Criminal Court (ICC) to sit in The Hague (Netherlands).
The Court will be created when 60 states have ratified the treaty on its statutes,
a process which should take two or three years.
The ICC will have (non-retroactive) jurisdiction over war crimes, crimes against
humanity, and genocide, under certain conditions. Signatories have the opportunity
not to recognize its jurisdiction over war crimes.
Ad hoc
War Crimes Tribunals
The War Crimes Tribunal
for the former Yugoslavia was set up by a resolution of the UN Security Council in
May 1993. Based in The Hague, it is empowered to prosecute those charged with serious
violations of international law on the territory of the former Yugoslavia, including
war crimes, crimes against humanity, and genocide.
So far 91 persons have been charged (including Yugoslav President Slobodan Milosevic),
31 of whom are in custody. Sentences ranging from seven days to 20 years have been
handed down to eight defendants. Four trials are currently being held.
The Tribunal for Rwanda, based in Arusha, Tanzania, was set up by the UN Security
Council in November 1994. It has jurisdiction over the same crimes as the above,
committed in Rwanda or neighbouring countries between January and December 1994.
So far, 48 persons have been charged, 38 of whom are in custody. Five defendants
have been sentenced, including three to life imprisonment for genocide. Three trials
are currently being held.
