II SEM ASSIGNMENT INTERNATIONAL LAW

INTERNATIONAL LAW

Question : What is crime against humanity and law. Is It dealt under international criminal court? How is UN Security Council responsible ?

‘CRIME AGAINST THE HUMANITY’, means that the acts of persecution or any large-scale atrocities against a body of people, as being the criminal offense above all others.

Human rights are international norms that help to protect all people everywhere from severe political, legal and social abuses. The right to freedom of religion, the right to a fair trial when charged with crime, the right not to be tortured, and the right to engage in political activity are the fundamental human rights. The rights exist in morality and in law at the national and international levels. The main sources of the contemporary conception of human rights are the Universal declaration of Human rights, the treaties that followed in international organizations such as the United Nations, the Council of Europe, the Organization of American States, and the African Union.

The Universal Declaration of Human Rights sets out number of human rights that countries should respect and protect, which are normally divided into six. They are Security rights that protect people against abuses of the legal system such as imprisonment without trial, secret trials and excessive punishments, liberty, rights that protect the liberty to participate in politics through actions such as communicating, assembling, protesting, voting and serving in public office, equality rights that guarantee equal citizenship, equality before the law and non discrimination and social rights that require provision of education to all children and protections against severe poverty and starvation.

Murder, extermination, torture, rape, political, racial or religious persecution and other inhuman acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringement s of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion.

Everyone has the right to freedom of thought and expression like that everyone has got the right to freedom of peaceful assembly and freedom of association with others.

Every citizen shall have the right to participate freely in the government of his country either directly or thorough freely chosen representatives in accordance with the provisions of the law.

Once human rights norms are established internationally, the question arises about what should be done by way of punishment and accountability for political, military, and ethnic leaders who have Organised and carried out severe human rights violations. The International Criminal Court is designed to prevent impunity for human rights crimes, genocides, war crimes, and crimes against humanity. The ICC was based on the models and experience of the Nuremberg tribunal, the international tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda. International Criminal Court was created in 1998 when 120 states adopted the Rome Statue of the International Criminal court setting forth the jurisdiction and functions of the court. International Criminal Court is intended to be complementary to state’s national systems for prosecuting war crimes and human rights violations and its jurisdiction is limited to the most serious crimes of concern to the international community as a whole.

Crime against the Humanity is the acts of persecution or any large-scale atrocities against a body of people, as being the criminal offense above all others. The International Criminal Court may have jurisdiction over four crimes such as (1) Genocide (2) Crimes against humanity (3) War Crimes (4) the Crime of aggression against another state.

The Rome Statute Explanatory Memorandum states that crimes against humanity ‘are particularly odious offense in that constitute a serious attack on human dignity or grave humiliation or a desecration of one or more human beings. They are not isolated or sporadic events but are part either of a governmental policy or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However murder, extermination, torture, rape, political, racial or religious persecution and other inhuman acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringement s of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion.

The joint statement issued by the Britain, France and Russia, the allied powers on May 24 1915, charging the other government of committing a ‘Crime against humanity’.

In view of these crimes of Turkey against humanity and civilization, the allied governments announce publicly to the Sublime Porte that they will hold personally responsible for these crimes all members of the ottoman government, as well as those of their agents who are implicated in such massacres.

The London charter of the International Military tribunal was the decree that set down the Laws and procedures by which the post World War II Nuremberg trials were to be conducted. The charter defied that only crimes of the European Axis Powers could be tried. Article 6 stated that the tribunal was established for the trial and punishment of the major war criminals of the European Axis countries.

Murder, Extermination, enslavement, deportation and other inhuman acts committed against any civilian population, before or during the war or persecutions on political, racial or religious grounds in execution of or in connection with a crime within the jurisdiction of the tribunal, whether or not in violations of the domestic law of the country where perpetuated.

A War crime is a punishable offense under international law, for violations of laws of war by any person or persons, military or civilian. Every violation of the law of war in an interstate conflict is a war crime, while violations in internal conflicts are typically limited to the local jurisdiction. The term War crime represents the concept of an international jurisdiction as applicable to the most sever crimes, in areas where government is dysfunctional and society is in a state of turmoil.

War crimes include violations of established protections of the laws of war, but also include failures to adhere to norms of procedure and rules of battle, such as attacking those displaying a flag of truce, or using that same flag as a ruse of war to mount an attack. War crimes are significant in international humanitarian law because it is an area where international tribunals such as the Nuremberg Trials have been convened. The war crimes include the willful killing, or causing great suffering or serious injury to body or health, torture or inhuman treatment, unlawful wanton destruction or appropriation of property, forcing a prisoner of war to serve in the forces of a hostile power, depriving a prisoner of war of a fair trial, unlawful deportation, confinement or transfer, taking hostages, etc are war crimes. Even directing attack against civilians, directing attacks against humanitarian workers or UN peacekeepers, killing a surrendered combatant, misusing a flag of truce, settlement of occupied territory, using poison weapons, using civilian shields, using child soldiers also include war crimes.

Crimes against humanity “are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However murder, extermination, torture, rape, political, racial or religious persecution and other inhuman acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes.

It was on May 24, 1915, the allied powers, Britain, France and Russia jointly issued a statement explicitly charging for the first time ever another government of committing, a crime against humanity. It was against the act of turkey. The words were that the crimes of turkey against humanity and civilization, the turkey would hold personally responsible for these crimes all members of the ottoman government, as well as those of their agents who are implicated in such massacres.

The regional human rights systems in fact are a supplement to the UN system by promoting and protecting human rights in particular parts of the world. The three regions – Europe, America and Africa have formulated their own declarations and conventions for the protected and enforcement of human rights. Like that the Article 3 of the Statute of the Council of Europe requires member states to accept the principles of human rights and fundamental freedoms within their jurisdictions. The European system originally had both a commission and a human rights court to ensure that member states fulfilled their human rights obligations. It is very pertinent to note that the countries that ratify the European convention agree to respect and implement a list of rights but they also agree to the investigation, mediation and adjudication of human rights complaints. The American Declaration encompasses the entire range of human rights and it includes the explicit list of duties, ranging from general duties toward society and one’s children to an individual’s duty to vote, work and pay taxes. It has right to receive and investigate individual petitions regarding human rights violations, publish reports regarding human rights situations in member states, visit member states and investigate general human rights conditions or particular problem areas etc.

The inter-American Commission on Human Rights was established in 1959 and conducted its first investigation in 1961, the above commission is the first of two permanent bodies for promoting and protecting human rights in the Americas and consists of seven members elected by the OAS General Assembly who serve in their personal capacities.

Crimes against humanity are murder, extermination, enslavement, deportation and other inhuman acts committed against any civilian population, before or during the war or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The finding of the International Military Tribunal for the trial of German major War Criminals was that “The tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity and insofar as the inhuman acts charged in the indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of or in connection with the aggressive war, and therefore constituted crimes against humanity.

The systematic persecution of one racial group by another was recognized as a crime against humanity.

The International Criminal Court:-

The international criminal court was established in 2002. The Rome statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes.

As per Article 7 of the treaty ‘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.

They are:-

Murder, extermination, Enslavement, Deportation or forcible transfer of population, Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules or international law, torture, Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity. Persecution against any identifiable group or collectivity or political, racial, national, ethnic, cultural, religious, gender, 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; enforced disappearance of persons, the crime of apartheid, other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.

Crimes against humanity are particularly odious offense in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy, or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial or religious persecution and other inhuman acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhuman acts of this nature may constitute grave infringements of human rights or depending on the circumstances, war rimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetuated one or two of the offenses mentioned above or engages in one such offense against only a few civilians, provided those offenses are part of a consistent pattern of misbehavior by a number of persons linked to that offender. When one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test:-

One ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of a inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.

United nations Security Council is responsible to action to protect civilians in armed conflict. The UN Security Council Resolution 1674, adopted by the United nations Security Council on 28 April 2006, and the same reaffirms the provisions of paragraph 138 and 139 of the 2005 World Summit Outcome document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

The committee of ministers of the council of Europe on 30^th April 2002 issued a recommendation to the member states on the protection of women against violence. In the section’ Additional measures concerning violence in conflict and post conflict situations,. It state that member state should ‘penalise rape, sexual slavery, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as an intolerable violation of human rights as crimes against humanity and when committed in the context of an armed conflict, it amounts a war crimes.

Article 7 of the Statute of the International Criminal Tribunal adopted in Rome in July 1998, defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity, as crimes against humanity. Article 8 of the said statute further states that above said acts are serious breach of the Geneva Conventions as War Crimes. The Rome Statute, article 7.1 also states that, I order to attract the provision as a crime against humanity, it should a part of a widespread or systematic attack directed against any civilian population. It means that a course of conduct involving the multiple commission of above acts against any civilian population, pursuant to or in furtherance of a state or organizational policy to commit such attack. The crime against humanity does not include an individual crime on its own. Even a number of such crimes would not fall under the Rome Statute unless they were the result of a state or organizational policy.