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Genocide, Crimes against Humanity, War Crimes, Ethnic Cleansing

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United Nations: Office of Genocide Prevention and the Resposibility to Protect

DEFINITIONS

Genocide

Background

Secretary-General visits Auschwitz-Birkenau, Poland. UN Photo/Evan Schneider

The word “genocide” was first coined by Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. Lemkin developed the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, but also in response to previous instances in history of targeted actions aimed at the destruction of particular groups of people. Later on, Raphäel Lemkin led the campaign to have genocide recognised and codified as an international crime.

Genocide was first recognised as a crime under international law in 1946 by the United Nations General Assembly (A/RES/96-I). It was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The Convention has been ratified by 149 States (as of January 2018). The International Court of Justice (ICJ) has repeatedly stated that the Convention embodies principles that are part of general customary international law. This means that whether or not States have ratified the Genocide Convention, they are all bound as a matter of law by the principle that genocide is a crime prohibited under international law. The ICJ has also stated that the prohibition of genocide is a peremptory norm of international law (or ius cogens) and consequently, no derogation from it is allowed.

The definition of the crime of genocide as contained in Article II of the Genocide Convention was the result of a negotiating process and reflects the compromise reached among United Nations Member States in 1948 at the time of drafting the Convention. Genocide is defined in the same terms as in the Genocide Convention in the Rome Statute of the International Criminal Court (Article 6), as well as in the statutes of other international and hybrid jurisdictions. Many States have also criminalized genocide in their domestic law; others have yet to do so.

Definition

Convention on the Prevention and Punishment of the Crime of Genocide

Article II

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  1. Killing members of the group;
  2. Causing serious bodily or mental harm to members of the group;
  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. Imposing measures intended to prevent births within the group;
  5. Forcibly transferring children of the group to another group.

Elements of the crime

The Genocide Convention establishes in Article I that the crime of genocide may take place in the context of an armed conflict, international or non-international, but also in the context of a peaceful situation. The latter is less common but still possible. The same article establishes the obligation of the contracting parties to prevent and to punish the crime of genocide.

The popular understanding of what constitutes genocide tends to be broader than the content of the norm under international law. Article II of the Genocide Convention contains a narrow definition of the crime of genocide, which includes two main elements:

  1. A mental element: the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”; and
  2. A physical element, which includes the following five acts, enumerated exhaustively:
    • Killing members of the group
    • Causing serious bodily or mental harm to members of the group
    • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
    • Imposing measures intended to prevent births within the group
    • Forcibly transferring children of the group to another group

The intent is the most difficult element to determine. To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group. It is this special intent, or dolus specialis, that makes the crime of genocide so unique. In addition, case law has associated intent with the existence of a State or organizational plan or policy, even if the definition of genocide in international law does not include that element.

Importantly, the victims of genocide are deliberately targeted – not randomly – because of their real or perceived membership of one of the four groups protected under the Convention (which excludes political groups, for example). This means that the target of destruction must be the group, as such, and not its members as individuals. Genocide can also be committed against only a part of the group, as long as that part is identifiable (including within a geographically limited area) and “substantial.”

Crimes Against Humanity

Background

United Nations Transitional Authority in Cambodia (UNTAC).
UN Photo/John Isaac

It is not clear in which context the term “crimes against humanity” was first developed. Some scholars[1] point to the use of this term (or very similar terms) as early as late eighteenth and early nineteenth century, particularly in the context of slavery and the slave trade, and to describe atrocities associated with European colonialism in Africa and elsewhere such as, for example, the atrocities committed by Leopold II of Belgium in the Congo Free State. Other scholars[2] point to the declaration issued in 1915 by the Allied governments (France, Great Britain and Russia) condemning the mass killing of Armenians in the Ottoman Empire, to be the origin of the use of the term as the label for a category of international crimes.

Since then, the notion of crimes against humanity has evolved under international customary law and through the jurisdictions of international courts such as the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Many States have also criminalized crimes against humanity in their domestic law; others have yet to do so.

Crimes against humanity have not yet been codified in a dedicated treaty of international law, unlike genocide and war crimes, although there are efforts to do so. Despite this, the prohibition of crimes against humanity, similar to the prohibition of genocide, has been considered a peremptory norm of international law, from which no derogation is permitted and which is applicable to all States.

The 1998 Rome Statute establishing the International Criminal Court (Rome Statute) is the document that reflects the latest consensus among the international community on this matter. It is also the treaty that offers the most extensive list of specific acts that may constitute the crime.

Definition

Rome Statute of the International Criminal Court

Article 7
Crimes Against Humanity

  1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
    1. Murder;
    2. Extermination;
    3. Enslavement;
    4. Deportation or forcible transfer of population;
    5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
    6. Torture;
    7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
    8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
    9. Enforced disappearance of persons;
    10. The crime of apartheid;
    11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
  2. For the purpose of paragraph 1:
    1. ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

Elements of the crime

According to Article 7 (1) of the Rome Statute, crimes against humanity do not need to be linked to an armed conflict and can also occur in peacetime, similar to the crime of genocide. That same Article provides a definition of the crime that contains the following main elements:

  1. A physical element, which includes the commission of “any of the following acts”:
    1. Murder;
    2. Extermination;
    3. Enslavement;
    4. Deportation or forcible transfer of population;
    5. Imprisonment;
    6. Torture;
    7. Grave forms of sexual violence;
    8. Persecution;
    9. Enforced disappearance of persons;
    10. The crime of apartheid;
    11. Other inhumane acts.
  2. A contextual element: “when committed as part of a widespread or systematic attack directed against any civilian population”; and
  3. A mental element: “with knowledge of the attack”

The contextual element determines that crimes against humanity involve either large-scale violence in relation to the number of victims or its extension over a broad geographic area (widespread), or a methodical type of violence (systematic). This excludes random, accidental or isolated acts of violence. In addition, Article 7(2)(a) of the Rome Statute determines that crimes against humanity must be committed in furtherance of a State or organizational policy to commit an attack. The plan or policy does not need to be explicitly stipulated or formally adopted and can, therefore, be inferred from the totality of the circumstances.

In contrast with genocide, crimes against humanity do not need to target a specific group. Instead, the victim of the attack can be any civilian population, regardless of its affiliation or identity. Another important distinction is that in the case of crimes against humanity, it is not necessary to prove that there is an overall specific intent. It suffices for there to be a simple intent to commit any of the acts listed, with the exception of the act of persecution, which requires additional discriminatory intent. The perpetrator must also act with knowledge of the attack against the civilian population and that his/her action is part of that attack.

 

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[1] For example, William Schabas, Unimaginable Atrocities – Justice, Politics, and Rights at the War Crimes Tribunals, Oxford University Press, 2012 – p. 51-53.

[2] For example, M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, Martinus Nijhoff Publishers, 1999, p.62

War Crimes

Background

Ruins of Al-Uruba Hotel, Mogadishu
UN Photo/Tobin Jones

Even though the prohibition of certain behavior in the conduct of armed conflict can be traced back many centuries, the concept of war crimes developed particularly at the end of the 19th century and beginning of the 20th century, when international humanitarian law, also known as the law of armed conflict, was codified. The Hague Conventions adopted in 1899 and 1907 focus on the prohibition to warring parties to use certain means and methods of warfare. Several other related treaties have been adopted since then. In contrast, the Geneva Convention of 1864 and subsequent Geneva Conventions, notably the four 1949 Geneva Conventions and the two 1977 Additional Protocols, focus on the protection of persons not or no longer taking part in hostilities. Both Hague Law and Geneva Law identify several of the violations of its norms, though not all, as war crimes. However there is no one single document in international law that codifies all war crimes. Lists of war crimes can be found in both international humanitarian law and international criminal law treaties, as well as in international customary law.

The 1949 Geneva Conventions have been ratified by all Member States of the United Nations, while the Additional Protocols and other international humanitarian law treaties have not yet reached the same level of acceptance. However, many of the rules contained in these treaties have been considered as part of customary law and, as such, are binding on all States (and other parties to the conflict), whether or not States have ratified the treaties themselves. In addition, many rules of customary international law apply in both international and non-international armed conflict, expanding in this way the protection afforded in non-international armed conflicts, which are regulated only by common article 3 of the four Geneva Conventions and Additional Protocol II.

Definition

Rome Statute of the International Criminal Court

Article 8
War Crimes

  1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
  2. For the purpose of this Statute, ‘war crimes’ means:
    1. Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
      1. Wilful killing
      2. Torture or inhuman treatment, including biological experiments;
      3. Wilfully causing great suffering, or serious injury to body or health;
      4. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
      5. Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
      6. Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
      7. Unlawful deportation or transfer or unlawful confinement;
      8. Taking of hostages.
    2. Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
      1. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
      2. Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
      3. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
      4. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
      5. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
      6. Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
      7. Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;
      8. The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
      9. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
      10. Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
      11. Killing or wounding treacherously individuals belonging to the hostile nation or army;
      12. Declaring that no quarter will be given;
      13. Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;
      14. Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;
      15. Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;
      16. Pillaging a town or place, even when taken by assault;
      17. Employing poison or poisoned weapons;
      18. Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
      19. Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;
      20. Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;
      21. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
      22. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;
      23. Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
      24. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
      25. Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;
      26. Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
    3. In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
      1. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
      2. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
      3. Taking of hostages;
      4. The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.
    4. Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
    5. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
      1. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
      2. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
      3. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
      4. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
      5. Pillaging a town or place, even when taken by assault;
      6. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
      7. Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
      8. Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;
      9. Killing or wounding treacherously a combatant adversary;
      10. Declaring that no quarter will be given;
      11. Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
      12. Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;
    6. Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.
  3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.

Elements of the Crime

War crimes are those violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law. As a result, and in contrast to the crimes of genocide and crimes against humanity, war crimes must always take place in the context of an armed conflict, either international or non-international.

What constitutes a war crime may differ, depending on whether an armed conflict is international or non-international. For example, Article 8 of the Rome Statute categorises war crimes as follows:

  • Grave breaches of the 1949 Geneva Conventions, related to international armed conflict;
  • Other serious violations of the laws and customs applicable in international armed conflict;
  • Serious violations of Article 3 common to the four 1949 Geneva Conventions, related to armed conflict not of an international character;
  • Other serious violations of the laws and customs applicable in armed conflict not of an international character.

From a more substantive perspective, war crimes could be divided into: a) war crimes against persons requiring particular protection; b) war crimes against those providing humanitarian assistance and peacekeeping operations; c) war crimes against property and other rights; d) prohibited methods of warfare; and e) prohibited means of warfare.

Some examples of prohibited acts include: murder; mutilation, cruel treatment and torture; taking of hostages; intentionally directing attacks against the civilian population; intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals; pillaging; rape, sexual slavery, forced pregnancy or any other form of sexual violence; conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

War crimes contain two main elements:

  1. A contextual element: “the conduct took place in the context of and was associated with an international/non-international armed conflict”;
  2. A mental element: intent and knowledge both with regards to the individual act and the contextual element.

In contrast to genocide and crimes against humanity, war crimes can be committed against a diversity of victims, either combatants or non-combatants, depending on the type of crime. In international armed conflicts, victims include wounded and sick members of armed forces in the field and at sea, prisoners of war and civilian persons. In the case of non-international armed conflicts, protection is afforded to persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause. In both types of conflicts protection is also afforded to medical and religious personnel, humanitarian workers and civil defence staff.

Ethnic Cleansing

Background

United Nations Protection Force (UNPROFOR).
UN Photo/John Isaac

Ethnic cleansing has not been recognized as an independent crime under international law. The term surfaced in the context of the 1990’s conflict in the former Yugoslavia and is considered to come from a literal translation of the Serbo-Croatian expression “etničko čišćenje”. However, the precise roots of the term or who started using it and why are still uncertain.

The expression “ethnic cleansing” has been used in resolutions of the Security Council and the General Assembly, and has been acknowledged in judgments and indictments of the ICTY, although it did not constitute one of the counts for prosecution. A definition was never provided.

Definition

As ethnic cleansing has not been recognized as an independent crime under international law, there is no precise definition of this concept or the exact acts to be qualified as ethnic cleansing. A United Nations Commission of Experts mandated to look into violations of international humanitarian law committed in the territory of the former Yugoslavia defined ethnic cleansing in its interim report S/25274 as “… rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area.” In its final report S/1994/674, the same Commission described ethnic cleansing as “… a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.”

The Commission of Experts also stated that the coercive practices used to remove the civilian population can include: murder, torture, arbitrary arrest and detention, extrajudicial executions, rape and sexual assaults, severe physical injury to civilians, confinement of civilian population in ghetto areas, forcible removal, displacement and deportation of civilian population, deliberate military attacks or threats of attacks on civilians and civilian areas, use of civilians as human shields, destruction of property, robbery of personal property, attacks on hospitals, medical personnel, and locations with the Red Cross/Red Crescent emblem, among others.

The Commission of Experts added that these practices can “… constitute crimes against humanity and can be assimilated to specific war crimes. Furthermore, such acts could also fall within the meaning of the Genocide Convention.”

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