Monday, May 14, 2012

Genocide:A Gravest Crime Against Humanity Under International Humanitarian Law

Published in Orient Journal of Law and Social Sciences[ ISSN 0973-7480] Volume VI ,Issue-April 2012 ;Page -102-106: 


Genocide:A Gravest Crime Against Humanity Under International Humanitarian Law*


“Laws are silent amidst of the clash of arms” –Cicero 

The raw violence is result of power struggle, domination over the territory and false perception of superiority of race or ethnic community or religious community ,the history has witnessed many wars ,armed conflicts  and mass killing without  showing any mercy, killings not only include armed people but also non-armed people.


The history witnessed mass butchery of tribals,,ethnic and religious groups and  no mercy shown on women and children, which resulted in adoption of various conventions and treaties ,which called for codification of the  rules and laws relating to the laws of warfare and human rights.    

The Genocide is  regarded as crime against humanity under international law ,but also uncivilsed act in civilsed world ,moreover against the spirit of U.N charter as well as Universal Declarations of Human rights. The Genocide means systematic mass killings or ethnic cleansing of group during armed or non- armed conflicts.

Definitions: 

There is no universal accepted definition of the word ‘genocide’, there is no single definition to say what constitute genocide? It is apt to discuss several definitions for broader understanding of the word ‘Genocide’ "The deliberate and systematic destruction of a racial, political, or cultural group "[1]  The Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group" [2]The word Genocide derived from the  Greek word “genos”, for race or tribe, and the suffix “cide” from the Latin for “to kill" [3]

The term "genocide" did not exist before 1944.It is a very specific term, referring to violent crimes committed against groups with the intent to destroy the existence of the group.It is a gross violation of Human rights, as laid out in the U.S. Bill of Rights or the 1948 ,United Nations Universal Declaration of Human Rights, which concern the rights of individuals.


The word ‘genocide’ was first defined by Raphael Lemkin' , Lemkin's idea of genocide as an offense against International Law was widely accepted by the international community and was one of the legal bases of the Nuremberg Trials.


 Chalk and Jonassohn opined : "Genocide is a form of one-sided mass killing in which a state or other authority intends to destroy a group so defined by the perpetrator”[4] "The term Holocaust", means  the mass murder of Jews under the German Nazi regime in World War II.[5]

The International Legal Definition:

United Nations General Assembly[1946] Resolution 96 (I) (11 December) therefore, affirms that genocide is a crime under international law .whether the crime is committed on religious, racial, political or any other grounds."The international legal definition of the crime of genocide is found in Articles II and III of the 1948, the Convention on the Prevention and Punishment of Genocide. (CPPCG) was adopted by the UN General Assembly on 9 December 1948 and came into effect on 12 January 1951 (Resolution 260 (III))[6]. "Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 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; [and] forcibly transferring children of the group to another group"
Article II describes two elements to constitute the  crime of genocide:[7]

1) the mental element, meaning the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such",  and 2) The physical element which includes five acts described in sections a, b, c, d and e. A crime must include both elements to be called "genocide." Article III described five punishable forms of the crime of genocide: genocide; conspiracy, incitement, attempt and complicity. This definition has been criticized by many scholars and experts on the ground that it eliminated political and social groups.
M. Hassan Kakar in his book “The Soviet Invasion and the Afghan Response, 1979-1982 says that the international definition of genocide is too restricted[8]

History of Genocide:The Old Testament describes the genocides of Amalekites and Midianite, Genghis Khan of mongol is Known for killing boys and men of captured cities and also kidnapping the woman and girls. 


Christopher Columbus landed on American soil in 1890,which  lead to massacre of Sioux at Wounded Knee by the United States military on December 29, 1890[9], there were several instances of destruction of American aborigines.


The Armenian Genocide: Armenian genocide during world war -I during Ottoman Empire. Armenian deaths is between 1 million and 1.5 million in the year 1915.It is regarded as first modern genocide in the world.


Nazi Genocide of Jews: One of the prominent genocide case was Jews prosecution during Second World War [1933-45:], It is estimated that six million Jewish men, women and children were systematically murdered in extermination or "death" camps located in Eastern Europe .by Nazi army led by  Adolf Hitler, which became subject of debate as a war crime during second world war. Nuremberg &Tokyo tribunals were formed to prosecute war criminals during Second World War holocaust. 


Partition of India & Pakistan: During Partition of India in the year 1947, millions of Muslims, Hindus and Sikhs were slaughtered or disappeared for being on the wrong side of the newly formed border.


Bangladesh Liberation war :The Guinness Book of Records lists the atrocities by General Agha Mohammed Yahya Khan of Pakistan on Bengali intellectual, cultural, and political elite in East Pakistan(now known as Bangladesh) during Bangladesh Liberation war, in the year  1971 as one of the top 5 genocides in the 20th century.


Sikhs in India: Hundreds of Sikhs died during army operations, while tackling separatist agitation and mass killing of Sikhs aftermath of assassination of Mrs. Indira Gandhi  [then Prime Minster of India] in 1984. 


Bosnia & Herzegovina[Yugoslavia]:In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was formed  to investigate crime against humanity in Bosnia and Herzegovina and it delivered its first conviction for the crime of genocide, against General Krstić for his role in the 1995 Srebrenica Genocide. It is estimated that civil war killed people at around 100,000–110,000 and most devastating conflict after world war –II


Rwandan Genocide:In ,1994 mass murder of an estimated 800000 people were reported in small East African nation of Rwanda. [Hutu –Tutsi conflict]The International Criminal Tribunal for Rwanda (ICTR) is a court under supervision of the United Nations for the prosecution of offenses like genocide committed in Rwanda occurred there during April and May, 1994, it is stated that ICTR has convicted 57 accused persons.


Darfur Genocide:In February 2003, when the Sudan Liberation Movement/Army (SLM/A) and Justice and Equality Movement (JEM) groups in Darfur took up arms, accusing the Sudanese government of oppressing non-Arab Sudanese in favor of Sudanese Arabs.
In January 2005, an International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, to investigate the crimes against humanity and war crimes that have been committed in Darfur in Sudanese civil war.
Chechenian deportation :On February 26 2004 ,the plenary assembly of the European Parliament recognized the deportation of Chechen people during Operation Lentil (23 February 1944), as an act of genocide, on the basis of the 1907 ,two Hague Conventions on laws of war.


East Timor conflict : UN report states that the Indonesian military used starvation as a weapon to exterminate the East Timorese, along with Napalm and chemical weapons, which poisoned the food and water supply. Between 1975 &1999, there were an estimated 102,800 conflict-related deaths (approximately 18,600 killings and 84,200 'excess' deaths from hunger and illness), the majority of which occurred during the Indonesian occupation.


Ethiopian rule :Amnesty International estimates that up to 500,000 people were killed during the Ethiopian Red Terror lead by former Soviet-backed Marxist dictator Mengistu Haile Mariam. The Eritrean–Ethiopian War took place from May 1998 to June 2000.


Cambodia:In Cambodia,  the Khmer Rouge, led by Pol Pot, Ta Mok and other leaders, organized the mass killing of ideologically suspect groups, ethnic minorities like the ethnic Vietnamese, Chinese[1975-1979]


Sri Lankan Tamils: Recently ,In Sri Lankan Tamil conflict ,hundreds of minority Tamils were disappeared or killed by Sri Lankan army. On 22nd March ,2012,,the U.N Human Right Council (UNHRC) passed  a resolution  condemning mass killings[40,000],&human rights violations by the Sri Lankan Army in the name of fighting terrorist outfit LTTE.India is among 24 countries ,which voted against Sri Lanka and in favour of  resolution.


Gujarat Violence in India: There were communal riots in 2001, hundreds of minority Muslims were targeted ,after train bogey was burn down at Godhra station,Gujarat.The issue of Gujarat riots has reached Hon’ble Supreme Court of India for impartial inquiry as allegations of failure of state machinery surfaced. during riots.


Formation of International Criminal Court: 


The International Criminal Court[10] was formed under Rome statue, 1998. The Rome Statute entered into force on 1 July 2002 after ratification by 60 countries .The ICC can only prosecute war crimes committed on or after 1 July 2002.. The ICC is an independent international organisation, and is not part of the United Nations system. The Court publicly indicted 28 people, proceedings against 23 of whom are ongoing.[as reported in Wikipedia]

Mrs.Mary Robinson of UNHCR said “A strong permanent international criminal court will send out a powerful message of deterrence to all those in positions of power and leadership that they can no longer use terror tactics, systematic rape, ethnic cleansing, mutilation and indiscriminate killing of non-combatants as weapons of war or for any other purpose”[11]

Conclusion: 


The Genocide is most heinous crime war against humanity during armed or non –armed conflict. The individual was not a part of International law or Law of nations, there was no legal protection for offences against humanity, but after individual became a part of International Law, there was perceptible change in the outlook of international community in fighting crimes against humanity. 


The special war tribunals were set up for prosecuting war criminals after second world war ,the major development of International Humanitarian Law occurred with adoption of four Geneva conventions of 1949, which came into effect on 1950 and two additional protocols of 1977, The International Humanitarian law is regarded as an integral part of Human Rights law. The International Humanitarian law includes two components one is law of warfare and another is human rights law.


Another major development in International law is state terrorism and state torture,now it is regarded as international crime under International Law, the U.N declarations on Torture in 1975 condemned the state torture, it violates Article 7 of International Covenant on civil and political rights, 1966., which came into effect in the year 1976, which clearly prohibit torture as instrument of oppression by the state.


The International criminal court was formed after Rome statue enacted, the ‘genocide’ is recognized as war crime and perpetuators are liable to be prosecuted under ICC charter. 

Foot notes:

*Author is Practicing Advocate at A.P High Court,Hyderabad &worked for A.P Women's Commission,Hyderabad.

[1]Funk, T. Marcus (2010). Victims' Rights and Advocacy at the International Criminal Court. Oxford, England: Oxford University Press.

[2] http://en.wikipedia.org/wiki/Genocide

[3]http://en.wikipedia.org/wiki/Genocide#Lemkin

[4]Frank Chalk, Kurt Jonassohn The History and Sociology of Genocide: Analyses and Case Studies, Yale University Press, 1990,

[5]Compact Oxford English Dictionary,1991
 
[6]http://untreaty.un.org/cod/avl/ha/cppcg/cppcg.html
  [7] http://www.preventgenocide.org/genocide/officialtext.htm

 [8]M. Hassan Kakar :The Soviet Invasion and the Afghan Response, 1979-1982 University of California press , 1995 The Regents of the University of California.

 [9]Massacre At Wounded Knee, 1890," EyeWitness to History, www.eyewitnesstohistory.com (1998).

 [10]http://www.icc-cpi.int/Menus/ICC/About+the+Court/

 [11]Address by Mary Robinson ,15 june 1998,http:// www.un.ord/icc/speeches/robinson.htm.

References:


1.Charlotte Lindsey: Women facing war-ICRC study on the impact of armed conflict on women ,ICRC,Geneva ,October 2001

2.Compact Oxford English Dictionary,1991


3.Funk, T. Marcus (2010). Victims' Rights and Advocacy at the International Criminal Court. Oxford, England: Oxford University Press.


4.J.G Stark: Introduction to International Law ,Butterworth &co [Publishers]Ltd 1999.[Indian edition].


5.M. Hassan Kakar :The Soviet Invasion and the Afghan Response, 1979-1982 University of California press , 1995 The Regents of the University of California


6.M.K Balachndran &Rose Varghese[editors]:Introduction of International Humanitarian Law ,ICRC,New Delhi 1999


Weblinks :
 

  1. http://en.wikipedia.org/wiki/Genocide
  2. http://en.wikipedia.org/wiki/Genocide#Lemkin 
  3. http://en.wikipedia.org/wiki/Genocides_in_history 
  4. http://www.un.org/news/ 
  5. http://www.preventgenocide.org/genocide/officialtext.htm 
  6. www.eyewitnesstohistory.com
  7. http://www.icc-cpi.int/Menus/ICC
  8. http://www.amnesty.org/

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