The London Agreements, in
the aftermath of the WWII, served to establish an International Military
Tribunal —which would be also known as the Nuremberg Tribunal— to prosecute and
punish the European Axis major war criminals for the crimes committed during
the war period. In its annex was included the proceeding to follow and the jurisdiction
of the tribunal —which was named Charter of the International Military
Tribunal.
Concretely, art. 6 included
the type of crimes in which the Tribunal had jurisdiction. It’s worth
mentioning that the crimes were three: (a) crimes against peace; (b) war
crimes; and (c) crimes against humanity. These concern the planning,
preparation, and waging a war of aggression. According to WERLE[1]
the difference is that the
criminalization of war crimes serves to protect the rights of foreign citizens,
crimes against humanity include offenses against one’s own citizens. Thus,
the domestic arena is also included in international law. The rationale is
based on the idea that certain serious attacks on individuals gain
international dimension when they are systematically aimed at a specific
civilian population.
Although it was not
specifically called genocide either in the Charter or the judgment of the
Nuremberg Tribunal, genocide was actually included in the provisions under the
umbrella of crimes against humanity. However, what really draws my attention,
is that it was then that for the very first time in history, individuals were
held responsible for the acts committed. It was back then, in 1945, where international
law made a step further and decided to indict and prosecute war criminals. This
was a valiant, though a no-risk leap, that allowed the international community
to prosecute those who intended to change the world order at the expense of the
interests of the international community as a whole.
Unfortunately, not all the
efforts were focused on the same direction. After the initial momentum, during
the Cold War, International Criminal Law suffered a standstill and no
significant progress was done. It was in 1995 where, after 40 years, the UN
established the ICTR and the ICTY to make further development on that field.
The concept of genocide it
is not trivial, even more when the use of the word has been spread and
universally accepted. It was officially first established as such in the 1948
Genocide Convention. Even today there are doubts whether the Convention only
grants jurisdiction over acts of genocide to the territorial state or an
international court that was not stablished by that time or, conversely, pursuant
to art. 1 of the Convention, it provides state parties grounds to prosecute
genocide on the basis of universal jurisdiction[2].
The duty to prosecute is a question
that has been raised so many times in this contexts that seems that there is
not still a clear answer to that yet.
In order to give some
thoughtful ideas on the crime of genocide, it is interesting to point out the
actions covered by the Genocide Convention. Before doing so, it’s important to
bear in mind, as WERLE stated, that the definition of Genocide was copied from
the Genocide Convention and literally transferred to both the ICTY, ICTR and
ICC Statutes[3]. This
is why in this sense I will refer to them indistinctively.
All the aforementioned
provisions include as punishable: those acts consisting of (a) killing members
of the group; (b) causing serious bodily or mental harm to members of the
group; (c) deliberately inflict conditions of life to bring the group to
destruction; (d) impose measures to prevent births; (e) transfer children to
other groups with intent to destroy a national, ethnical, racial or religious
group.
From the reading of the
provision one can infer that to stand before a genocide, it is necessary that the
perpetrator wants the destruction of the group. It is not necessary to actually
achieve the purpose or even partially harm the group; the willingness to commit
the act is sufficient. Then, the second requisite is to do one of the specified
actions. It cannot be others than the actions included in the article 6 par.
from letter (a) to (e). And last but not least, it should be national, ethnical
or racial groups.
Linking this last point with
the conclusion, I would like to mention two things that may be seen as
obvious but sometimes forgotten: the first one is that international criminal
law, as international law itself, appears as a sheer politicized tool that
serves big countries interests. The second thing regarding genocide is that
there are many things left aside because this law is certainly constrained by
politics. For instance, both political groups and suppressing cultural norms of
a group don’t constitute genocide and hence were excluded from the Convention
as a result of certain nation states objecting[4].
Therefore, no one can state that a cultural genocide has been committed, simply
because the international tools don’t include it as such.
[1]
WERLE, G.: Principles of International Criminal Law, OUP, 2014, p. 7.
[2]
See both Bosnia and Herzegovina v.
Yugoslavia, ICJ, Judgment of 11 July 1996 and Jorgić v. Germany, ECtHR,
judgment, 2007
[3]
See: art. 2 of the ICTR Staute; art. 4 of ICTY Statute; and art. 6 ff the ICC
[4]
WERLE G.: Principles of International Criminal Law, OUP, 2014, p. 300
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