Grant Niemann. Handbook of Transnational Crime & Justice. Editor: Philip Reichel. Sage Publication. 2005.
Criminal law is often thought of as a means of maintaining human order within the confines of a specific community. The courts apply the criminal law according to a specific geographical area that they refer to as their “jurisdiction.” However, notions of what constitutes the boundaries of a community are relative and have changed over time.
Universal recognition and acceptance of a body of law referred to as “international criminal law” is not without its detractors. It is a question of how it is viewed. If international criminal law is seen as merely an extension or part of national law, then it is not a separate law at all. Those who subscribe to this view argue that international customary law cannot conflict with state law, because state law is supreme. They argue that insofar as their own citizens are concerned, they can validly make laws that are inconsistent with international law and that the courts will enforce those inconsistent laws. With respect to “treaty law,” such laws would not be regarded by state courts as having any application unless such international laws are made part of state law by state legislation.
The alternative view is that international criminal law is a separate and distinct body of law. International criminal law may or may not be part of national law, but at least insofar as an international criminal law has achieved jus cogens status, then such a law would be binding on the legislature of that state. With respect to treaty law, if it is intended to be “self-executing,” then on ratification of the treaty, such a law would be supreme.
Neither view has achieved universal acceptance. Prior to World War II, the situation was clearer; generally, national law applied to “individuals,” and international law applied to “states.” However, in the period from World War II to the present, more and more, international criminal law applies to individuals. Consequently, it cannot now be safely said that state courts can simply ignore international criminal law, at least insofar as such laws have achieved jus cogens status. Thus, a law of a state that permitted genocide or even apartheid could now be held to be illegal by a national court, because such a law would be beyond the state legislature’s competence.
Furthermore, international criminal law has been referred to as a branch of “international humanitarian law.” International criminal law has expanded significantly since the Nuremberg trial of 1946. However, it is fair to say that it has not reached the status of a fully self-sufficient coherent body of law; in other words, it is still emerging, and opinions may differ widely as to its interpretation and application. This does not mean, however, that there is not a fundamental “core” of basic international laws that are universally accepted as binding on all humankind.
The secretary-general of the United Nations was keen to identify such laws when setting up the International Criminal Tribunal for the former Yugoslavia. He was able to conclude with some degree of certainty that the grave breaches of the Geneva Conventions of 1949, the violation of the Laws and Customs of War and of Crimes against Humanity and Genocide were undoubtedly in this category. The secretary-general was anxious to select only those crimes that he considered would be uncontroversial, lest the principle of nullem crimen sine lege should operate to defeat any prosecutions undertaken by the fledgling tribunal.
Accordingly, modern international criminal law has, for the moment, two main sources: (1) the Laws and Customs of War and (2) Crimes against Humanity and Genocide.
A significant omission here is the crime of aggression. Initially recognized as an international crime by the League of Nations in 1922, it was the centerpiece of the Kellogg-Briand Pact 1928 (although not expressed as a crime as such). It was then inserted in the Charter of the Nuremberg Tribunal and titled “Crimes against Peace.” The Nuremberg crime of aggression involved the planning and waging of a war of aggression or in violation of international treaties.
The International Military Tribunal at Nuremberg held that to initiate a war of aggression “is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” This crime was significantly omitted from the Statute of the International Criminal Tribunals for the former Yugoslavia and Rwanda and included in the Statute of the Permanent International Criminal Court only on the basis that it would not apply until states “could agree upon a suitable definition.”
The definition of “a crime of aggression” as proposed by the International Law Commission in July 1991 provided that a “leader organizer or individual” who orders an act of aggression would be guilty of a crime. The commission defined “aggression” as the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state or in any manner inconsistent with the Charter of the United Nations. It was also an act of aggression for one state to allow its territory to be placed at the disposal of another state so that the latter state could commit an act of aggression. This definition (although legally correct) was not accepted by states for incorporation into the Statute of the Permanent International Criminal Court.
With respect to the Laws and Customs of War, these laws are mostly concerned with regulating the means of warfare and human conduct during the course of armed conflict, and they have as their central focus the participants of battle.
Crimes against Humanity are not restricted to periods of armed conflict and have as their central focus the victims of such crimes.
For the most part, these laws have evolved during the course of the 19th and 20th centuries, although the laws of war go back to earlier times. International criminal law is still in its emergence, but it has developed more since World War II than at any previous time in history.
As human intercourse and communication has moved from the primitive printing press to satellite-conveyed television images and cyberspace, so too has the concept of what constitutes the community. Instead of criminal law being the exclusive business of a local community such as a region, town, city, or state, as human activity and concern have extended beyond the nation-state, the question of regulating human conduct, including conduct beyond the nation-state, becomes an issue.
Community support for the international rule of law progressively increased because of a perceived need to regulate and control the conduct of persons whose acts had repercussions beyond the boundaries of their nation-states.
A war crime is the violation of the laws of warfare (usages or customs of war) committed by any persons military or civilian. There is a distinction to be made between the rules of warfare and war crimes. H. Lauterpacht defines war crimes as offenses against the laws of war that are criminal in the ordinary and accepted sense of the word. They are to be distinguished from traditional criminal laws by reason of their heinousness, their brutality, their ruthless disregard for the sanctity of human life, and their wanton interference with rights of property unrelated to reasonably conceived requirements of military necessity.
National war crimes codes regulating the conduct of armies have existed for centuries. The first significant national modern war crimes code that went beyond matters of strict military discipline was drafted by Francis Lieber. In 1863, President Lincoln set in train a promulgation by the War Department to settle a series of instructions for the U.S. Army to use in the field of battle. These instructions were prepared by Francis Lieber, a German veteran of the Napoleon wars who had immigrated to the United States and became a professor of law and political science at Columbia University. The instructions comprised some 159 articles covering matters such as “military necessity,” punishment of crimes against the inhabitants of hostile countries, prisoners of war, and spies.
Lieber drafted his code for use in the American Civil War, and parts of it are still to be found in the U.S. military code. Although national codes are not a part of international criminal law, they have contributed to customary international law and constitute evidence of customary law. Furthermore, the expressed opinion of states, particularly in cases where such opinion is generally accepted by other states, not only evidences the existence of customary international law but also demonstrates a change in what was previously accepted as customary international law.
The Hague Law
At around the same time that Lieber was drafting his code, in Europe, Czar Alexander II of Russia proposed the idea of holding an international conference to ban the use of lightweight bullets, which exploded on contact with human flesh. As a consequence, the Declaration of St. Petersburg in 1868 prohibited the use of explosive projectiles under 400 grams in weight. This was the first international convention in modern times to prohibit the use of a particular weapon of war, although it must be said that crossbows and the like had been prohibited in earlier times.
The St. Petersburg Declaration provided that the “only legitimate objective which states should endeavor to accomplish during war is to weaken the military forces of the enemy and that the unnecessary use of weapons which uselessly aggravate suffering were contrary to the laws of humanity.”
In 1899, Czar Nicholas II of Russia proposed another conference, this time in The Hague, Netherlands. The purpose of the conference was to consider banning the dropping of bombs from balloons, the use of poisonous gases, and the use of expanding bullets, known as “dumdum” bullets, during war. The Hague Convention II of 1899, which was the result of this conference, adopted these prohibitions but significantly also introduced the first comprehensive set of regulations on the Laws and Customs of War on Land. The Laws and Customs of War (further modified in 1907) provided for the care of prisoners of war, flags of truce, and the treatment of the inhabitants and property of occupied territories and prohibited rape and pillage. The 1907 Hague Conventions and regulation Article 1 apply the laws to armies as well as militia. Chapter II is concerned with the treatment of prisoners of war; Article 23 limits who may be killed under certain circumstances and the use of poison and weapons that cause unnecessary suffering—the principle of proportionality.
The 1899 and 1907 Convention on the Laws and Customs of War expressly recognized that they were not exhaustive of this area of law and provided for the development of further laws according to “usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”
Other conventions settled on at The Hague in 1907 included Convention V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Convention VI Relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities, Convention VII Relating to the Conversion of Merchant Ships into War-Ships, Convention VIII Relating to the Laying of Automatic Submarine Contact Mines, Convention IX Concerning Bombardment by Naval Forces.
The prohibition on the dropping of bombs from balloons still applies but unfortunately has only limited practical application. Controversy surrounds the application of 1899 Hague Declaration, relating to dumdum bullets, as a means of prohibiting the development and use of much more devastating ammunition. Poisonous gases were used extensively during the course of the 20th century.
Although often more recognized in their breach than their observance, the Laws and Customs of War settled on at The Hague Peace Conferences of 1899 and 1907 have now been embodied as customary international rules of war applicable to this day. Thus, the killing of innocent civilians, the use of poisonous weapons, killing the enemy after they have laid down their arms, declaring that no quarter be given, sentence without trial, employing weapons causing unnecessary suffering (principle of proportionality); mistreatment of prisoners of war, and deceptive use of flags of truce or distinctive emblems are all prohibited. Articles 44 to 56 restrict what an occupying force or state may do on occupied territories to the inhabitants of the occupied territory. For example, a citizen of an occupied territory cannot be compelled by a belligerent occupier to furnish information about the inhabitants’ army or be compelled to swear allegiance to the occupying power.
This attempt to contain the use of excessively destructive weapons of war spurned a proliferation of similar such conventions and declarations throughout the course of the 20th century, including the Geneva Gas Protocol 1925, which banned the used of poisonous gases as a weapon of war. This protocol was replaced by the Biological Weapons Convention of 1972. Other arms control conventions included the Conventional Weapons Convention of 1980 and the additional protocols of 1995 and 1996, The Chemical Warfare Convention of 1993, and the 1997 Ottawa Treaty banning the use of antipersonnel land mines.
The laws of war prohibiting the use of excessively destructive weapons during armed conflict (gas, bombs, bullets) and the conduct of soldiers (rape, murder, and pillage) were not originally intended to apply to individuals but only to the responsible state as a basis of claiming compensation or reparation. Thus, although the conduct was prohibited, the laws did not give rise to individual criminal responsibility at the international level. The Hague Protocol of 1954 for the Protection of Cultural Property in the event of armed conflict was designed to safeguard cultural property during the event of an armed conflict, but during the Yugoslav conflict, it was frequently breached.
The Hague Laws are generally referred to as the laws of war, whereas the Geneva Laws are known as the international humanitarian laws.
Again in the middle of the 19th century, Henry Dunant, a Swiss banker, observed the cruelty of war firsthand at Solferino in northern Italy. This was a war between France, Italy, and Austria. There were about 40,000 casualties in the conflict, and what struck Dunant most was the total lack of regulation concerning removal of the dead and wounded after the battle. He returned to Switzerland and in 1862 wrote Memory of Solferino. The book suggested that neutral “relief societies” should be formed to care for the sick and wounded in times of war. He further suggested that an international conference should be held to enable representatives of different countries to consider and adopt an international agreement on how to care for the soldiers wounded in battle.
In 1864, such a conference was held in Geneva, Switzerland, and was attended by the representatives of 16 countries. The international conference concluded by agreeing on a short convention that focused on providing a means by which medical attention could be provided to the soldiers wounded in battle. It also saw the creation of the Red Cross Society, with its distinctive Red Cross emblem, and enshrined the Red Cross principles of neutrality, humanity, impartiality, and respect for the individual.
The Geneva Conventions first proposed by Henry Dunant of Switzerland were modified and updated throughout the course of the 20th century. The Geneva Conventions of 1906 made greater provision for the care of wounded and sick soldiers.
After World War I, the Geneva Conventions of 1929 (1) Relative to the Treatment of Prisoners of War and (2) For the Amelioration of the Condition of the Wounded and Sick in Armies in the Field were updated to include provision for the protection of medical aircraft and the adoption of red crescent and red lion emblems for Muslim countries.
Following the horrors of World War II, the Geneva Conventions were again extensively overhauled at a conference in 1949. As a result of this conference, four new Geneva Conventions were adopted, each dealing with a specific subject area: (1) wounded and sick in armed forces, (2) wounded and sick at sea, (3) treatment of prisoners of war, and (4) treatment of civilians. However, because World War II was an international armed conflict, the 1949 Geneva Conventions were primarily directed at the regulation of conduct in the course of an international armed conflict.
This limitation on the application of the 1949 Geneva Conventions was modified in 1977 to cater for the greater protection of civilians in both internal and international armed conflict. Thus, the 1977 additional protocols (regarding international armed conflict and internal armed conflict) when coupled with the 1949 conventions now constitute the most important source of Geneva law.
The notion that the state could be held responsible in terms of its collective guilt and be ordered to pay reparations for the states’ wrongdoings rarely did anything to redress the pain and suffering caused to the victims of such atrocities. Reparation payments went to the injured state, not to the individuals concerned.
Nor were international laws of war originally meant to make the head of state criminally liable for the breach of the laws and customs of war by their armies. The sovereign head of government viewed himself or herself as above the law. They were the manifestation of the law itself. Accordingly, he or she was not bound by the criminal law.
The position of the sovereign evolved into the sovereign state, and this immunity from criminal liability passed on to sovereign state itself. Accordingly, sovereign states and their human representatives were immune from the criminal law at both national and international levels when carrying out an act of state. The head of a sovereign state could not be brought to trial for domestic or international crimes, no matter how egregious his or her crimes might have been.
Prior to the 20th century, there were occasional international trials for war crimes, but at no time was a sovereign head of state seriously considered as a candidate for war crimes prosecutions.
After World War I, Kaiser Wilhelm II of Germany was supposed to be tried by an international tribunal for the atrocities his armies committed during World War I, but this call for prosecution action soon passed when ironically the Kaiser took asylum in the Netherlands (now the seat of the new International Criminal Court), and no prosecutions ever followed.
The state of the law on individual responsibility and sovereign immunity at the international level was to change after World War II due to the extensive violation of the laws of war. The Nuremberg Charter of 1945 for the first time introduced the concept of individual criminal responsibility for violation of the Laws and Customs of War and ensured that sovereign heads of state could not shelter behind sovereign immunity.
Although the Nuremberg Charter and the Charter for the International Military Tribunal for the Far East (the Tokyo Tribunal) abolished sovereign immunity, such abolition did not ensure that the sovereign Emperor of Japan, Hirohito, was prosecuted for war crimes. Indeed, no sovereign head was prosecuted following World War II, because the other contender, Adolph Hitler, was dead.
Hence, the principle of sovereign immunity was to remain relatively untested until 1998 when General Augusto Pinochet went to London for medical treatment. Pinochet was entitled to assume, based on past practice, that he would not have to defend himself from a Spanish extradition warrant for his arrest for committing crimes against humanity in his native Chile. The British House of Lords after two hearings accepted the argument that for crimes against humanity, which attracted universal jurisdiction, there can be no immunity from prosecution.
One can expect that the successful prosecution of other heads of state, now charged with crimes against humanity, such as Slobodan Milosevic, will finally put to rest any lingering uncertainty about the disappearance of sovereign immunity, at least at the international level.
International Armed Conflict
States are careful about intervening in the internal conflicts of another state. The trigger mechanism for a state to intervene for war crimes is the classification of the conflict as “international.” Determining international armed conflict can at times be difficult. For example, the conflict in the former Yugoslavia was at first viewed as the disintegration of a federal state. As with most federations, if there is a dispute involving armed conflict between the states, then this is viewed, at least prima facie, as an internal conflict or civil war, not as an international armed conflict.
In the case of the former Yugoslavia, Serbia, Croatia, Slovenia, and Bosnia-Herzegovina were all states in the federation of Yugoslavia. What the International Criminal Tribunal for the former Yugoslavia (ICTY) had to decide early on was whether a war between the former states of, say, Serbia and Croatia was an international armed conflict. An even more difficult problem was the status of the war between the Bosnian Serbs, the Bosnian Croats, and the Bosniacs (initially, mostly Muslims). Was this an international armed conflict?
In the case of the conflict between Serbia and Croatia, it was a question of whether by the time of the conflict either state had achieved the status of an independent state. Whether a state is an independent state depends on whether (a) it has a population, (b) it governs a particular territory, (c) it has declared itself independent, (d) other countries recognize it as an independent state, and (e) the United Nations recognizes it as an independent state.
Things that militate against its being an independent state include the reverse of the above principles, such as, does the entity control its own borders, does it have its own independent army, does it control its own customs, does it depend on any other state for governance.
With Bosnia, the conflict was between the Bosnian Serbs, the Bosniacs, and the Bosnian Croats. Both Serbia and Croatia were assisting in the conflict by supplying arms and other military support. In the case of Serbia, it assisted the Bosnian Serbs by leaving behind what was left of the Yugoslav People’s Army (the JNA). However, to confuse the issue, Milosevic withdrew most of the Serbian component of the JNA. He did this so that he could argue (to the international community) that the conflict in Bosnia was only an internal armed conflict and that Serbia was not involved. This Serbian withdrawal took place on May 4, 1992. The Federal Republic of Yugoslavia (FRY) publicly ordered its troops out of Bosnia. The Bosnian Republic of Srpska under General Mladic and President Karadiz then allegedly carried on the battle alone.
For prosecutors to persuade the Tribunal that there continued to exist an international armed conflict in Bosnia, despite the withdrawal of FRY troops, it had to mount a complex argument that because the FRY was leaving behind a fully equipped army, this “unfriendly act” was sufficient to assert that that the FRY continued to be a party to the conflict, thus making it international. In other words, the FRY was in Bosnia before May 1992; it then (ostensibly) left. There still remained a fully equipped army, albeit that command had passed to some (but not all) of the Bosnian Serbs. Some Serb soldiers were allowed to return to Serbia. However, the prosecution pointed to evidence that showed that Mladic and Karadiz were still in effect subordinate to the FRY and further that not all Serbian and Montenegrin troops had left Bosnia. Ultimately, the tribunal saw through the ruse created by Milosevic and declared the conflict international.
Similarly, Croatia supplied weapons and advisers to the Bosnian Croats. Interestingly, they were a little more open than the Serbs; hence, there was more evidence of their direct involvement, including having actual command of Bosnian Croat troops in Bosnia.
The determination of the status of the conflict was important—first because it resolved the vexed issue of whether or not the grave breach provisions of the 1949 Geneva Conventions applied, but perhaps more important, it legitimized international participation in the conflict.
War crimes tend to be committed by persons linked to one side of the armed conflict against neutral citizens or combatants of a belligerent party on the other side of the conflict. The armed conflict may be international or internal in nature.
Crimes against humanity can be carried out against any civilian population, provided the attack is widespread or systematic. A crime against humanity—persecution—must be carried out pursuant to a policy of persecution on political, racial, or religious grounds, but no such policy is required for a war crime. For an accused to be found guilty of a crime against humanity, there is no obligation on the prosecution to prove that the accused actually intended to persecute the particular group, provided it is proved that the crime was committed as part of a widespread or systematic attack directed against a civilian population and that the accused knew that his or her acts fit into this pattern.
A war crime is committed during or linked to an armed conflict, but there is no such requirement for a crime against humanity.
If a soldier kills a prisoner of war, he or she commits a war crime whether or not the act is carried out on his or her own initiative or as a result of state policy, but there must be some linkage to the belligerent state. Many crimes may be committed during the course of armed conflict, but not all are war crimes.
In the Essen Lynching case, a British war crimes court found some German civilians guilty of war crimes for acting as a lynch mob in the murder of a British airman. There was no evidence of any “military” or “command” link between the citizens and the Nazi German State, but clearly, they were on the side of Germany and their actions “benefited” the German state in dealing with the airman in this way. There was no question that the victims were linked to the other side of the conflict and were entitled to be treated as prisoners of war, which in the circumstances of this case was held to be sufficient.
The proof of links becomes even more complex where the offenders are from the same side of the conflict as the victims. For example, in the Belsen Trial, a number of concentration camp inmates were employed by the Nazi Germans as minor functionaries. But the court was satisfied in this case that the inmates were working for the Germans, which in the circumstances was sufficient to establish a linkage.
In a relatively modern case, the Lebanese militia massacred Palestinians in the Subra and Chattila refugee camps in 1982. These militia were trained, equipped, and under some level of control by the Israeli army. This link with Israel was sufficient for the authors of the Khan Report to find that the Israeli officers were, at least in part, responsible for the massacre.
Military commanders and persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates. The criminal liability may arise out of the superior’s positive acts (direct command responsibility) or from the superior’s culpable omissions (indirect command responsibility). Thus, the superior can be responsible for ordering, instigating, or planning the criminal acts carried out by his or her subordinates or by failing to take measures to prevent or repress the unlawful conduct of his or her subordinates.
The 1907 Hague Convention IV Article 1 (1) provides the “roots of command responsibility” when it declares that the laws of war apply not only to armies but also to militia and volunteer corps, which must be “commanded by a person responsible for his subordinates.” Although the principle of command responsibility was not expressly stated in the Nuremberg Charter or Far East Charter, it appeared in a number of the military manuals of states. However, it was recognized and applied by the Nuremberg and Tokyo Tribunals and numerous tribunals after World War II. For example, the Medical Case, the Hostage Case, and the High Command Case all recognized the existence of the principle of command responsibility.
Perhaps the most notorious command responsibility case was that of Yamashita. The trial of General Tomoyuki Yamashita took place before a U.S. Military Commission in Manila between October 8 and December 7, 1945. The commission heard 286 witnesses, read 423 exhibits, and created over 4,055 pages of transcript. Yamishita was charged with unlawfully discharging or failing to lawfully perform his duty as commander to control the acts of members of his command and by permitting them to commit war crimes. The war crimes alleged were widespread acts of murder and rape. In one province alone— namely, Batangas province—25,000 men woman and children, all unarmed civilians, were killed or otherwise brutally mistreated without cause or military necessity. Other similar massacres and rapes were also alleged in the indictment.
The defense case was based on the fact that there was no evidence that the general neglected his duty or that he ever permitted the commission of the crimes alleged. The defense argued that this amounted not to an allegation that the general did or failed to do something but that he was guilty because he “was” something—namely, the commander. The defense argued that there was no crime known to law for which a commander is responsible simply because troops under his command committed war crimes.
The prosecution countered that the crimes committed were so widespread and brutal that they must have been known to the accused if he were making any effort at all to meet the responsibilities of his command. If he did not know, it was because he took affirmative action not to know.
Although this was the principle accepted by the commission as the basis of Yamashita’s liability, a closer reading of the case will show that there was at least some evidence (albeit disputed) that Yamashita had ordered one Philippine general, who was collaborating with the Japanese, Antremioi Ricarte, that “all the commanders of the military posts in the Philippines Islands were to wipe out the whole Philippines population and to destroy Manila, since everyone on the Island were guerrillas or active supporters of guerrillas.”
One curious aspect of the defense was that Yamashita could not have gone out and properly supervised his troops because the constant bombardment by the Americans had made his job so difficult that he spent all his time and energy trying to defend his military position. This appeared to carry little weight with the commission.
The principle of command responsibility was incorporated in the Statute of the Tribunal for the former Yugoslavia. In the tribunal statute, the principle was extended to include “superiors” who included political as well as military commanders. The secretary-general said “superior authority” not only included responsibility for “giving the order” but for failure to “prevent or deter.” The secretary-general went on to say that this “imputed responsibility or criminal negligence” is engaged if the superior knew or had reason to know that subordinates were about to commit a crime or, if subsequently discovering the commission of a crime by the subordinates, failed to take action to punish.
In Delalic (in regard to allegations of war crimes in Bosnia) the prosecution argued that the evidence showed that Delalic had acted as if he had authority over the Celibici camp, even though there was no specific formal documentary or other evidence of this position of authority. At the time, the Bosniacs were cut off from Sarajevo, and there were no lines of communication; it amounted to “self-help.” Delalic had not been a soldier before the war; he was a businessman. The Bosniacs of the area resorted to self-help; there was no real organization. The defense used this state of disarray to their advantage to demonstrate that Delalic had no command over the prison camp. They admitted that he had control over troops, but the troops had not been charged with committing war crimes. The charges related only to crimes that had been committed in the Celibici camp. The prosecution argued that command responsibility could attach by means of de facto as well as de jure command. The tribunal accepted that this could be so, but still found that there was insufficient evidence to prove that Delalic was in command of the camp or that he had the power to prevent the crimes from being committed.
Proving the mens rea in command responsibility cases can be difficult. In Delalic, the prosecution argued the Yamashita principle— that if the acts were sufficiently widespread and notorious, then knowledge could be presumed. However, this was rejected by the tribunal, which held that knowledge has to be proved by either direct evidence or inferred from circumstantial evidence. In Celibici, it found that no such inference was reasonably open on the evidence.
The Statute of the Permanent International Criminal Court draws a clear distinction between “military commanders” and “superiors,” which includes political superiors. With respect to military commanders, the person must be shown to be an actual military commander or “effectively acting as a military commander.” With respect to a superior, responsibility attaches only if the prosecution demonstrates that the superior had effective responsibility and control.
Crimes against Humanity
A crime against humanity is an international crime and is distinguished from a domestic crime on the basis that its breach is of concern to the whole of the international community and as a consequence invokes international jurisdiction. It is the concept of humanity as the victim, rather than just the individual victim, that essentially characterizes crimes against humanity. A crime against humanity is defined as murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution on political, racial, or religious grounds, or other inhumane acts.
Crimes against humanity have their geneses in the laws of war. The “Martens” Clause of the 1907 Hague Convention (discussed earlier) first spoke of “laws of humanity” in the context of developing international customary law. Although spoken of in terms of conflicts around the time of World War I, it was not until the end of World War II that these vague and undefined references were crystallized into a new species of international criminal law.
The Charter of the International Military Tribunal for Nuremberg expressly created crimes against humanity and provided a sanction for their breach. The crimes were to attract individual criminal liability for the perpetrator.
Links to Armed Conflict?
The drafters of the Nuremberg Charter had to grapple with the then-applicable but outmoded principle of international law, which provided that international law had no application to events that occurred internally within the national borders of a country. In other words, international law applied only to events that had occurred during the course of an international armed conflict. This meant that the atrocious crimes committed by the Nazis against their own people, the Jews of Germany, could not be punished by an international tribunal if this principle were to apply.
Fortunately, the law was changed, and the Nazi criminals were tried and punished for the crimes they had committed against the German Jewish people.
The Nuremberg Charter included “crimes against humanity,” “crimes against peace,” and “war crimes” having been committed during the course of World War II, which in turn restricted crimes against humanity to offenses committed during the course of an armed conflict. Other than the fact that the International Military Tribunal at Nuremberg was concerned with events that occurred during the course of World War II, there was no reason to restrict crimes against humanity to events that occurred during armed conflict. This restriction was not placed on crimes against humanity in Control Council Law No. 10 or the International Law Commissions Draft Code of 1954. The Genocide Convention and the Apartheid Convention were not restricted to periods of armed conflict.
In the ICTY statute, there is added the additional requirement that the offense must be “committed in armed conflict.” This is not a requirement of other statutes such as the Statute of the International Criminal Tribunal for Rwanda or the Rome Statute of the Permanent International Criminal Court. It has now been held that under customary international law, there is no need to establish a nexus with armed conflict. When the secretary-general drafted the ICTY statute, he wanted to include in the statute only crimes that were “beyond doubt part of customary law.” Interestingly, however, the secretary-general, in his report on the statute, expressly stated that crimes against humanity are prohibited “regardless of whether they are committed in armed conflict.” This apparent state of confusion was resolved by the Appeals Chamber in the Tadic jurisdiction appeal, when the Appeals Chamber declared that it was “now a settled rule of customary international law that crimes against humanity do not require a connection to … armed conflict.” In the final Tadic Appeal Judgment, the Appeals Chamber essentially disposed of the matter altogether when it held that the “armed conflict requirement is a jurisdictional element, not a substantive element of the mens rea of crimes against humanity (i.e., not a legal ingredient of the subjective element of the crime).”
Widespread or Systematic Attack
For a crime to be a crime against humanity, it must be directed at a civilian population, specifically identified as a group by the perpetrators. There is a need for the crime to exhibit the characteristics of system or organization and to be of a certain scale and gravity. Although if “scale” is present, the gravity may be in the acts of scale rather than in the individual acts themselves.
Although the crime cannot be the work of an isolated individual acting alone, there is no requirement that the crime be carried out pursuant to the policy of a state.
The perpetrator of a crime against humanity must know that his or her act is part of a widespread or systematic attack against the civilian population. Nothing prevents a perpetrator from carrying out the act for purely personal motives. The widespread or systematic attack is to be distinguished from random acts of violence unconnected to any system or organization. Although the prosecution need only prove that the attack was widespread or systematic, not both, often the proof of one might be the proof of the other. In other words, proof that an act of violence was systematic may be demonstrated by the fact that it has occurred systematically in a geographically widespread area. The term widespread has been defined as massive, frequent, large-scale action carried out collectively with considerable seriousness and directed against a multiplicity of victims. Systematic is something that is thoroughly organized and follows a regular pattern on the basis of common policy involving substantial public or private resources. There is no requirement that the policy must be adopted formally as a policy of state. There must however be some preconceived plan or policy.
The “attack” may be one or more of the enumerated acts such as murder, enslavement, rape, or torture, or it may be a nonviolent act such as apartheid. The enumerated acts are not exhaustive and may include any inhumane act, provided the other elements are met. Crimes against humanity can also include acts of terrorism. That terrorism is a crime against humanity has been recognized at least since 1948 and has been reaffirmed as good law as recently as 1997. In The Prosecutor v. Erdemovic in the joint judgment of Judges McDonald and Vohrah, their Honors cite with approval the Albrecht Case, where the court held in relation to crimes against humanity that
crimes of this category are characterized either by their seriousness and their savagery, or by their magnitude, or by the circumstance that they were part of a system of terrorist acts, or that they were a link in a deliberately pursued policy against certain groups of the population.
It would be wrong to characterize crimes against humanity as consisting only of a multiplicity of different criminal acts committed by the same perpetrator at different times and places. Invariably, offenders are charged with individual acts that form part of a widespread or systematic attack, there being a link to the policy. However, a single act can be a crime against humanity, particularly if the one act is carried out pursuant to an organized policy. The bombing of Hiroshima and Nagasaki were single acts but part of an attack directed at the civilian population. Similarly, the attack on the Twin Towers in New York on September 11, 2001, were attacks directed against the civilian population and forming part of an organized and systematic plan. Having regard to the other attacks in the United States on that day, these acts were also widespread.
In the Vukovar case, the court considered that the one act of taking some 200 wounded and sick from a hospital and shooting them at a mass grave was a crime against humanity. The court held:
Clearly, a single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual criminal responsibility and an individual perpetrator need not commit numerous offences to be liable. Although it is correct that isolated random acts should not be included in the definition of crimes against humanity, that is the purpose of requiring that the acts be directed against a civilian population and thus “[e]ven an isolated act can constitute a crime against humanity if it is the product of a political system based on terror or persecution.”
A crime against humanity includes persecution of the targeted civilian population based on political, racial, and religious grounds. When introducing the ICTY statute, the secretary-general said,
Crimes against humanity refer to inhumane acts of a very serious nature, such as willful killing, torture or rape, committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic racial or religious grounds.
Because the secretary-general attached “on national political, ethnic, racial, and religious grounds” to all the enumerated acts such as murder, rape, and torture, the early decisions of the ICTY concluded that discriminatory intent had to be proved in all the enumerated acts, not just paragraph (h)—“persecution.” This interpretation was contrary to an ordinary reading of Article 5 of the statute.
When this matter was subsequently considered by the Appeals Chamber, the Appeals Chamber noted that discriminatory attacks on the civilian population based on “national, political, ethnic, racial or religious grounds” for all of the enumerated acts, including persecution, was not a requirement of the Nuremberg Charter or Control Law No. 10, nor was it part of customary international law. The Appeals Chamber noted the importance of the Report of the Secretary-General but said that his comments should not prevail over the clear words of the statute, and where possible (unless some very clear contrary intention is expressed), the tribunal should interpret the statute in a manner consistent with customary international law. The Appeals Chamber observed that there was no justifiable basis to restrict the ambit of crimes against humanity in this way. The Appeals Chamber went on to say,
For example, a discriminatory intent requirement would prevent the penalization of random and indiscriminate violence intended to spread terror among a civilian population as a crime against humanity. A fortiori, the object and purpose of Article 5 (Crimes against Humanity provision) would be thwarted were it to be suggested that the discriminatory grounds required are limited to the five grounds put forth by the Secretary-General in his Report.
Crimes against Humanity and Terrorism
Clearly, acts of terrorism are considered by the intentional tribunals as coming within the definition of crimes against humanity. Unlike crimes against humanity that attract universal jurisdiction and have achieved the status of jus cogens, it is fair to say that there does not exist a universally recognized definition of terrorism. It is indeed true that “one man’s terrorist is another man’s freedom fighter,” which paradox has clouded the debate on who should and should not be defined as a terrorist.
The difficulty with reaching universal agreement on what is an appropriate definition of terrorism is that it depends on the point of view one takes. For example, the struggle for independence of the emerging United States from the clutches of the British caused George Washington to be seen in the eyes of Americans as a national hero, but he was regarded by the colonizers as a terrorist. In modern times, the same can be said of the IRA, of the Tamils, of the Barques, and even al Qaeda, just to mention a few. Terrorism in the name of a state is also given different labels; the persecution orchestrated by the Nazis against the Jews was not seen as terrorism by the Nazis, but it was seen as such by the victims. The sinking of the Rainbow Warrior in Auckland Harbor was, to a New Zealander, a terrorist act, but it was viewed differently by the French.
This inability to reach international consensus on what terrorism is deprives it of legitimacy as an international crime. If the definition of what it is cannot be settled, then the legitimacy of its prohibition is tarnished. One of the fundamental principles of international humanitarian law, nullem crimen sine lege, dictates that there be certainty in international crimes before persons are tried for their breach. It is indeed this very controversy over the definition that led to the Nazi criminals being tried for crimes against humanity.
After the French Statesman Jean-Louis Barthou and King Alexander of Yugoslavia were assassinated by a Croatian “terrorist” in 1934, the international community endeavored to introduce a convention on terrorism, which came with its own intentional criminal tribunal. Unfortunately, the convention was ratified only by India, which at the time had not achieved independence from Britain.
It has not been for want of trying that an acceptable definition has not been found. Numerous conventions have been drafted under the auspices of the United Nations since its inception, mostly in response to some international catastrophic event. Nor have nation-states been slow in drafting their own definitions of what they consider to be acts of terrorism.
The problem is that there is no real consistency between states as to the definition of terrorism such that opinio juris can emerge on what we are speaking of when we use the term terrorism. The one possible exception to this is with respect to aviation terrorism. Because aviation is of such importance to the international community, some progress has been made in reaching consensus on this topic, but this is more the exception than the rule. Furthermore, only in the area of “aviation terrorism” has any real progress been made in reducing international crime.
Because the international prosecution of a terrorist offense is most likely to be a controversial affair and unlikely to be universally accepted, it is far better to prosecute a terrorist offense as a crime against humanity, provided the evidence would support such a prosecution. If terrorism included the use of politically motivated violence to create public fear, then a terrorist act may or may not be a crime against humanity. For example, a political activist may commit a terrorist act by detonating a small explosive device in a crowded picture theater, and calling out “bomb.” The explosion may not kill or even seriously injure anyone, but it could still be a terrorist act. If the size of the bomb is increased such that it kills a large number of the theater patrons, then this may be a crime against humanity.
If the preceding scenario were to be considered for the purposes of launching a prosecution for a crime against humanity under the Rome Statute (Statute of the Permanent International Criminal Court) (Article 7), the prosecutor would need to examine the evidence against each element of the offense. Perhaps the first question the prosecutor would ask is, “Was the attack directed against the civilian population?” Unless the prosecutor was considering crimes against humanity—persecution—it would not be necessary for the prosecutor to go further than settle the issue that the theatergoers were indeed civilian, as opposed, for example, to military personnel, because it is now settled law that proof of discriminatory intent is not a required element of proof in crimes against humanity, except for persecution.
The next step would be to determine which of the enumerated acts can be proved in relation to the particular act. If it can be shown that people were killed, then, of course, murder would be perhaps one of the first considerations. The prosecutor would then consider other “inhumane acts” of a similar character intentionally causing great suffering or serious injury to body or mental or physical health.
The prosecutor would then need to consider the question of “widespread or systematic.” This is done by looking at the perpetrators themselves. It is important if they are associated with a larger group or whether the acts were carried out pursuant to the policy of the group. If the prosecutor can demonstrate a connection to a particular organization, the next matter is to see if that organization has carried out similar acts in the past or at least attempted to carry out similar acts in the past. If this can be answered in the affirmative, it does not matter that the previous acts have been carried out against differently constituted members of the civilian population. For example, if the act under consideration was directed against a large number of foreign tourists at a popular holiday resort, it does not matter that previous acts or attempted acts were carried out against civilians who were or are of the same nationality as the perpetrators.
The prosecutor would want to establish what the perpetrators were trying to achieve by their acts, because this would be evidence of their policy. It also goes to the proof of “system.” Although a crime against humanity can be established even if the victims were not killed or perhaps not even injured, it is easier to prove if the crime is of a character that offends humanity. Multiple murders invariably fall into this category.
A question arises if the act in question is the first serious crime committed by the organization with which the perpetrators are associated. Can such an act satisfy the “course of conduct” requirement of the Rome Statute? Article 7 (2) (a) of the International Criminal Court statute provides that
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 organisational policy to commit such act.
The first thing that needs to be set aside is that the attack is not limited to attacks carried out by a state but can include nonstate actors such as organizations. Second, the multiple acts referred to in Paragraph 1 of Article 7 could mean that more than one murder would satisfy this requirement. It does not have to be multiple murders committed at different times and places for it to be a crime against humanity. This makes sense because it would always mean that the first act could not be charged as a crime against humanity, but the second act could. If it were not for this, Hiroshima would not be a crime against humanity, but Nagasaki would.
By way of example, in relation to the Bali Bombings of 2002, so far as Australia is concerned, the Permanent International Criminal Tribunal in The Hague could have tried these offenses assuming the evidence was available to prove each element of the offence. How the court could have exercised jurisdiction would have depended on the cooperation of the government of Indonesia. Australia had ratified the Rome Treaty before the Bali Bombings occurred; accordingly, Article 11 of the statute was satisfied so far as Australia was concerned.
Indonesia has not ratified the Rome Treaty. The offense was committed on Indonesian territory, and it would seem that the persons accused of the crime are likely to be nationals of Indonesia. Accordingly, the court could not automatically exercise jurisdiction because the crime was committed on the territory of a nonstate party by the nationals of a nonstate party (see Article 12 (2) (a) & (b)).
However, this is not the end of the matter, because there are ways in which these jurisdictional obstacles can be overcome. For the court to have exercised jurisdiction, one of three possibilities applies:
- Indonesia could have agreed to accept jurisdiction just for the purposes of the Bali Bombing trial and nothing else (Article 12 (3)). This would, of course, require the cooperation of Indonesia but may have been acceptable, because it was an isolated case and would not bind Indonesia in relation to any other matter.
- Australia could have requested the Security Council of the United Nations to refer the matter acting under Chapter VII of the U.N. Charter, pursuant to Article 13 (b) of the Rome statute.
- The prosecutor could have initiated a prosecution proprio moto.
The most efficient and effective course would have been Option 1 above; this would require goodwill from Indonesia and Australia. It has advantages for Indonesia because it still gives Indonesia some control over the process, which is less likely to occur if the Security Council took action under Chapter VII. The least effective method would have been a prosecutor-initiated investigation.
What is clear is that Indonesia could well face significant division in the community over this prosecution, which could affect the success or otherwise of the trial. It is more than just a possibility that at the end of the day, the trial may either stall or be a sham. Australia will want the perpetrators prosecuted, and certainly the victims will demand justice by way of a proper criminal trial. They are not likely to allow the matter to be simply swept under the carpet. Australia cannot seize the perpetrators from Indonesia, in some Eichmann fashion and try them on Australian soil, so it would have been better to have the trial at the permanent court in The Hague.
The Genocide Convention of 1948 was celebrated as one of the most significant steps in the development of international humanitarian law. Prior to 1948, international law did not prohibit genocide in peacetime. The term genocide itself was coined only prior to World War II, although the act of genocide existed in practice well before that date.
Genocide is the intentional destruction of a national ethnic, racial, or religious group of people. The crime can be committed by killing, seriously harming (bodily or mental), or inflicting conditions of life calculated to bring about the whole or partial destruction of the group; by imposing measures intended to prevent births; or by forcibly transferring children from the group, with the intention of completely or partially destroying the targeted group of people.
Essentially, genocide is concerned with the persecution of one group by another group, in circumstances where (at least) the persecuting group sees itself as different from the persecuted group. Sometimes both groups see themselves as different. All human beings are born with the ability to distinguish difference and “modernity thrives on the essentialization of difference.” Modern examples of the exploitation of difference include the treatment of indigenous persons by European imperialists. But perhaps the most dangerous and potentially genocidal entity is the nation-state.
Genocide and the Nation-State
The nation-state, and its policy by-product “nationalism,” is predicated on the need to achieve homogeneity. Diversity and the nation-state do not make happy bedfellows. When confronted with social, religious, and cultural diversity, the nation-state has sought to achieve uniformity by annihilation or assimilation. In the end, the result is the same, but not everyone would call it genocide. The anthropologist or sociologist is perhaps more likely to brand assimilation policies as genocide, whereas the lawyer may not do so. The nation-state’s dependence on homogeneity as its lifeblood is kept healthy by ingesting large quantities of nation-building products such as the national anthem, the national flag, and national holidays. These rallying symbols of national unity also serve to highlight differences within the community, especially when certain groups do not identify with the national anthem, the national flag, or national holidays. This could not be better illustrated than in the case of Australia. The Australian flag has for most of the life of the nation had contained within it the British Union Jack, which by definition must exclude indigenous Australians. The Australian Constitution did not recognize indigenous Australians until 1963; the Australian national anthem was for the most part of the 20th century “God Save the (British) Queen” and the “British Queen” still is Australia’s head of state.
There is a fundamental inconsistency in nominating nation-states as the guardian of international human rights and the prevention of abuses. Nation-states insist on their own sovereign rights and refrain from interfering in the affairs of other states in recognition of the unifying nature of reciprocity. After all, in most cases, it is the official organs of the state, such as the military and the police, who are generally directly or indirectly responsible for the implementation of policies of genocide.
Some of the worst genocides have been committed in the name of the state, especially where borders have been drawn by colonial powers and are relatively meaningless to the indigenous populations—Bosnia-Herzegovina, Pakistan-India, Afghanistan-Pakistan, Israel-Palestine, to mention a few.
Cultural genocide, which consists of destroying specific characteristics of the group, such as language, literature, learning, religion, and art, was expressly excluded from the Genocide Convention because it was considered to be an unjustified extension of the concept of genocide. Although the concept of cultural genocide was supposed to exclude attempted assimilation policies, there is no escaping the fact that the implementation of assimilation policies did in fact bring about the partial physical destruction of the group. It is hard to see why such assimilation policies would not offend the prohibition on “inflicting measures on the group calculated to bring about its physical destruction.”
Certainly, “forcibly transferring children from one group to another” as practiced on indigenous children in Australia must suggest a genocidal expectation that by so doing the full-blooded Aboriginal group would die out. Fortunately, if given the opportunity, it is unlikely that an international court would now interpret the provisions of the Genocide Convention so narrowly as to exclude liability for cultural genocide such as that which was practiced in Australia against its indigenous peoples.
Colonial indigenous genocide is often characterized by intermittent genocidal massacres rather than a prolonged and sustained genocidal act such as that committed by the Nazis over the Jews of Europe. The intermittent nature of the crime gives it an appearance of being less serious than other massive genocidal acts. Therefore, indigenous genocide is somehow seen as less horrible then nonindigenous genocide; rather, it is seen as “the savages making way for civilization.” In Tasmania, the land was literally swept clean of the indigenous population, as one might clear the land of “vermin.” Yet the killing of Aboriginal people in Australia has yet to be officially recognized as the genocide that it was.
Australia was not alone in terms of committing indigenous genocide. Genocide has been committed on every continent on earth, with the exception of Antarctica. In the Congo, some 40 million people lost their lives in genocidal massacres following European occupation. Indigenous genocide is a “slow and insidious form of genocide.”
What Makes the Crime Genocide?
Historically, there were two schools of thought about genocide. Some saw it as a unique event, such as the Holocaust; others said it has a much broader base. The narrow view could operate to exclude many victims of mass killings and would freeze the crime as an event in history. Fortunately, the narrow view has not prevailed. However, the existence of the narrow view can be illustrated by the initial reluctance of the ICTY to accept various incidents in Bosnia-Herzegovina as amounting to genocide. The wider view is premised on the fact that elements of genocide can be identified in all instances of life, including urban violence.
There is a need to strike a middle ground; some conflicts in which many thousands of people are killed may not be genocidal as such. The Allies in World War II for the most part had no intention of killing the Germans on racial, religious, or ethnic grounds. Genocide, unlike domestic crime, however, is a “relatively open crime”; the motives are open and so, too, is the carrying out of the crime itself. The reason for the killing based on racial, religious, or ethnic grounds is clearly articulated.
In the Akayesu case, the Rwanda Tribunal spoke of the four protected groups—national, ethnic, racial, or religious—then opined that in circumstances where a group did not strictly fit the definition, the convention should apply to any stable and permanent group whose membership is determined by birth. By so doing, the tribunal extended protection to the Tutsi of Rwanda, which would otherwise have been excluded, by a narrow reading of the convention. The question now is whether this extension by the trial chamber might also include other groups, such as homosexuals and the mentally and physically impaired.
Although the Genocide Convention does not specifically refer to rape, the trial chamber in Akayesu, relying on the enumerated act of causing “serious bodily and mental harm,” concluded that rape and sexual violence were part of this enumerated act.
Genocide is now generally recognized as a norm of jus cogens; in other words, it forms part of customary international law binding on all states. Tragically, acts of genocide are not limited to what occurred in Europe during the course of World War II; genocidal crimes have been found to have been committed in Rwanda and Bosnia as well.
The Causes of Genocide
Genocide does not just happen. The community needs to be well prepared for the commission of the genocidal act—“genocidal priming.” Generally, some politico-socio-economic calamity sparks off the genocidal fire in a volatile population “primed for ignition.” The priming is achieved by a prolonged period of state-sponsored racist propaganda against the victim group. Examples of igniting the spark abound—the Treaty of Versailles and subsequent severe economic depression with respect to Nazi Germany; the death of Tito with respect to the former Yugoslavia, the death of President Habyarimana with respect to Rwanda. In each case, there followed a period of state-sponsored propaganda.
The cause of the volatility of the population is a much deeper issue. Often, the target population in these circumstances has arrived in the country later than the victim population. With respect to German Jewish people when they arrived in what is now Germany, Christian Germans in an agrarian society denied them the right of land ownership. This exclusion impoverished German Jews until the arrival of the industrial revolution, which presented fresh nonagrarian opportunities in finance and commerce. In a sense, the German Jews occupied the vacuum of commerce and finance that was part and parcel of the industrial revolution. This had the effect of placing German Jews in positions of financial control when the German depression of the 1920s arrived. This position of control was much resented by Christian Germans, even though it was of their own making. Because German Jews were seen as “outsiders,” hatred toward them was, in the circumstances, relatively easy to muster by the use of targeted propaganda.
Similarly, in the case of the former Yugoslavia, the Muslim Bosniacs were also seen as outsiders who had seized control of Bosnia-Herzegovina during the rule of the Ottoman Empire. This occupation was much resented by the Orthodox Serbs and Catholic Croats who asserted original ownership of the land. In the case of Rwanda, the Tutsi were viewed by the Hutu as “foreigners from Abyssinia.”
Generally, the community can function effectively notwithstanding underlying ethnic hatreds, but if persons in authority stir up these community hatreds and if political and economic instability occurs, then genocide can follow. It has been argued that the cause of genocide in Bosnia-Herzegovina was triggered by the collapsing political and economic structures. With the disappearance of life as it was previously known, insecurity and fear, especially if fanned by propaganda, cause people to divide into “we groups” where qualification and entry is determined by birthright and ethnicity. If persecution, assaults, and violence are heaped on those other forces of disunification, hatred is directed toward the victim group. Clearly, responsibility for the genocide in the Balkans lay at the feet of the political leadership, aided and abetted by the media that they controlled. By dwelling on past atrocities committed by the “other group,” this manipulation of fear is the most important tool in the nationalist armory.
Propaganda employed to promote genocide is not limited to words alone. The use of music, the arts, and dance is also part of the genocidal conquest. In the case of Kampuchea, songs and dance were used to promote Angkor as the rallying point of the Khmer Rouge. Specific songs were directed at driving the “reactionary imperialists from Kampuchea.” Catchphrases such a “blood avenges blood” were used to rally the people to carry out the genocide. Singers and dances associated with the old regime were especially targeted and eliminated. This was not so much because they were part of the old regime, but because the aim was to expunge the dance itself. Elements of this can be seen in other genocidal events—the Nazi youth songs, Hitler’s passion for Wagner; Rwanda, Serbia, both had their songs. Serbs sang of the glory of Serbia— “Who says Serbia is small?” The Hutu sang about the Tutsi “cockroaches.”
Often, the consequences of genocide carried out by one generation have to be dealt with by subsequent generations. This can take various forms. In the case of Germany, German youth in the 1960s saw the Holocaust as something that punished future German generations. German parents immediately after the war dutifully continued the tradition of rigid “moral conformism.” This conformism was rejected by subsequent generations who considered themselves “victims” and in so doing identified themselves with the Jews. One of the most powerful manifestations of this rebellion was nudism. The naked body was seen in stark contrast to the authoritarian patterns of conformism. Public nudism was a “sign of liberation.”
The alternative approach was to ignore the genocide altogether. In many cases, the genocide carried out against indigenous populations in many countries was not taught in schools until recent times, if at all. In Australia, the reconciliation movement, which amounted to a citizen-led groundswell of support for the plight of indigenous people, really did not take place until the 1990s.
A feature of genocide is the tendency for apologists to explain away genocide as some terrible biologically determined event. Horrific but natural, something that could not be prevented, and something that simply had to run its course—Nazi cleansing the German blood, the pure Aryan race; the Hutu expelling the “cockroach”; the Serbs removing the Islamic fundamentalist threat. Nazi genocide has been described as a horrific experiment in modernity. Mass death was “facilitated by modern processes” of science technology and bureaucracy. Social engineering so as to create a new pure order required the extermination of those who “did not fit the new mould.”
There is a danger in asserting that one particular community or nation-state is immune from committing genocide. Genocide has been committed by the poor, the rich, the ignorant, the educated, the black, the white, and in the name of many different religions. However, it is no doubt correct that a society can condition itself against the possibility of genocide; for example, genocide does not usually occur in societies where (a) racial, religious, or ethnic differences are insignificant or are not a source of deadly conflict; (b) there is tolerance and preparedness to share between the dominant and minority groups; (c) minority rights are legally guaranteed; (d) social relations or voluntary groups cut across racial religious or ethnic differences; or (e) there is a balanced accommodation between groups, such as a willingness to share power.
It is not as though genocide is something born of the 20th century. Although the term genocide is relatively new, instances of genocide have been with humankind since very early times. Even the Bible contains examples of God-endorsed genocide—the destruction of human life by flood (with the exception of Noah and his animals), King Herod’s decrees ordering the destruction of the firstborn infant sons of Judea. Genocide has occurred throughout the ages—the Crusades, the destruction of witches during the Inquisition, and the colonial genocides against the indigenous people of the Americas, Africa, and Australia.
International criminal law is still very much in the developmental stage. In some cases, crimes such as torture and slavery, which are the subject of their own international conventions, are picked up and applied in the interpretation of traditional crimes against humanity. This has been especially so with respect to sexual assaults, including rape and sexual slavery during armed conflict, which has been characterized as both sexual slavery and torture. As customary international law develops alongside or in addition to statute or treaty law, it is likely that other crimes will ultimately form part of the body of international criminal law in their own right.
Following the formation of the United Nations in 1945, aspirations ran high that international criminal law, as a body of universally recognized and enforced laws, would become a permanent feature of the international legal landscape. The International Law Commission (ILC) was given the responsibility of formulating principles of international law, including a code of offenses against the peace and security of humankind. Sadly, the Cold War delayed much of this work by the ILC.
After 50 tortuous years, from 1947 to 1996, the ILC did eventually produce a code that incorporated general principles of international criminal law. Unfortunately, the ILC excluded crimes that did not have a political element or that were not concerned with international peace or security. The effect of this process of self-censorship meant that important transnational crimes, such as trafficking in drugs and children, money laundering, fraud, counterfeiting money and the like, were excluded.
As a consequence, the ILC code covered much of the same territory as the traditional international criminal laws discussed earlier. What makes the ILC code of some importance is that what it did cover is now considered as norms of customary international law.
With the ever-increasing number of transnational issues affecting the world as a single global community, international criminal law will inevitably have to expand to address new questions that extend beyond the borders of any one sovereign state. Such issues may well include illegal international financial manipulation—globalization of the world economy, global environmental vandalism (the greenhouse effect), and the international drug trade, to mention a few.
Crimes such as these can threaten the peace and security of humankind as much as war threatens human peace and security. Unfortunately, the process of development of international criminal law is slow and intermittent, often moving forward only after some catastrophic international event. For so long as state sovereignty has ascendancy over the rights of humanity, this process will continue to be slow.
At least the international criminal laws that we do have are a good start. The international community may come to depend very heavily on international criminal law as a means of preserving the global community in much the same way as traditional national criminal law protects the society of the nation-state.
As international criminal law gains strength and acceptability, the process of expansion of international criminal law to include other transnational crimes will inevitably follow. Global democratization is the engine that drives the development of international laws protecting the welfare of humankind. With the expansion of democratization, international laws, especially those protecting human rights, will ultimately gain ascendancy over sovereign interests, and the state will be subordinate to humanity—its servant rather than its master.
Today, the Laws and Customs of War and Crimes against Humanity and Genocide are the mainstay of international criminal law. These laws are no longer separate and distinct crimes as such but form part of a package of laws, referred to variously as international humanitarian law or international criminal law. The effect of the Nuremberg Charter was to incorporate all these laws in one article of the charter and make them criminal. This method of presentation was carried on in the criminal provisions of the Statute for the International Criminal Tribunal for the former Yugoslavia, the Statute for the International Criminal Tribunal for Rwanda, and the Statute of the Permanent International Criminal Court. These international crimes are collectively referred to as breaches of international humanitarian law, for which a criminal sanction applies. These laws are now undoubtedly part of international customary law, and their existence cannot be ignored by anyone or anything, including the sovereign state.