atrocity crimes holding individuals accountable for war crimes, crimes against humanity and genocide...

Atrocity Crimes

Holding Individuals Accountable

for War Crimes, Crimes Against

Humanity and Genocide

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Introduction

• Genocide• Crimes against Humanity• War Crimes• Aggression

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Defining Atrocity Crimes:Sources of Law

• Treaties• Customary International Law• United Nations Security Council• Domestic Law and General Principles

of Law• Jurisprudence

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Defining Atrocity Crimes:Legality and Elements

• Principle of Legality– Limit on individual criminal liability– Specific, unambiguous, not retroactive, no

application by analogy

• Elements of Crimes– act or omission– intent or knowledge

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Defining Atrocity Crimes: Distinct Bodies of Law

• International Human Rights Law– State’s obligation towards persons within

territory– At all times unless superseded by other

int’l law

• International Human Rights Law– Individual’s obligation towards protected

persons and protected property– During times of armed conflict– Also known as “Laws of War”, “Law of

Armed Conflict”

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War Crimes

• Crimes committed: – in violation of

international humanitarian law

– during armed conflict

• “Hague” law– Means and methods of

warfare

• “Geneva” law– Protection of persons

Displaced child,

Chechnya, Russia

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International and Internal Armed Conflict

• International armed conflict– Grave breaches of 1949 Geneva

conventions– Other serious violations of laws and

customs

• Internal armed conflict– Serious violations of Common Article 3– Other serious violations of laws and

customs

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General Principles of War Crimes

• Perpetrator: Any person• Distinguishing

international from internal armed conflict

• Mental element– Intent or knowledge– Serious criminal negligence

Hermann Goering• Nazi commander in WW II, close advisor to Hitler

• Convicted of war crimes• Sentenced to death, committed suicide

• Nuremburg Tribunal, 1946

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Grave Breaches: War Crimes

• Willful killing• Torture or inhuman

treatment• Willfully causing great

suffering or serious injury to body or health

• Taking of hostages• Extensive destruction

and appropriation of property, not justified by military necessity

• Compelling service in the forces of a hostile power

• Willful deprivation of the right to a fair and regular trial

• Unlawful deportation, transfer, or confinement

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Other Serious Violations ofInternational Humanitarian Law

• Intentionally directing attacks against civilian population

• Intentionally directing attacks against civilian objects which are not military objectives

• Killing or wounding a combatant who, having laid down his arms, has surrendered

• Committing outraged upon personal dignity, in particular humiliating and degrading treatment

• Conscripting or enlisting children under the age of 15 years, or using them to participate actively in hostilities

• Other violations of humanitarian law

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Other Serious Violations ofInternational Humanitarian Law

(continued)

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Serious Violations ofCommon Article 3

• Violence to life and person, in particular murder, mutilation, cruel treatment, and torture

• Committing outrages upon personal dignity, in particular humiliating and degrading treatment

• Taking of hostages• The passing of sentences and carrying out of

executions without previous judgment pronounced by a regularly constituted court

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Other Serious Violations of Internal Armed Conflict

Very similar to serious violations of laws and customs in international armed conflicts

Idi Amin• Dictator of Uganda when government

killed as many as 400,000 civilians, 1971-1979• Died 2003 while in exile in Saudi Arabia,

evading prosecution for his conduct in Uganda

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Crimes Against Humanity

• Does not have to be part of armed conflict

• Actual or constructive knowledge that act is committed as part of a widespread or systematic attack on civilian population with knowledge of the attack

Slobodan Milesovic• Serbian then Yugoslavian president, 1989-2000,

during wars in Croatia, Bosnia, and Kosovo•Tried for genocide in Bosnia, other atrocities in Croatia and Kosovo

• International Criminal Tribunal for the Former Yugoslavia,• Died in his jail cell, 2006.

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• Murder• Extermination• Enslavement• Deportation or

forcible transfer of population

• Imprisonment or other unlawful severe deprivation of physical liberty

• Torture• Rape, sexual slavery,

enforced prostitution, forced pregnancy, enforced sterilization, or other forms of severe sexual violence

Crimes Against Humanity(continued)

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• Persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender, or other impermissible grounds

• Enforced disappearance of persons• Apartheid• Other inhumane acts of a similar

character causing great suffering, or serious injury to body or to mental or physical health

Crimes Against Humanity(continued)

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Specific intent crime• Accused must

intend to destroy, in whole or part, a listed group

or…• Accused must have

clear knowledge he was participating in genocide

Genocide

Unearthing bodies in Iraq

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Any of the following acts committed with intent to destroy, in whole or 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

Genocide(continued)

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• Imposing measures intended to prevent births within the group

• Forcibly transferring children of the group to another group

Genocide(continued)

Genocide site, Rwanda

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Aggression

• The Rome Statute of the International Criminal Court included aggression as an atrocity crime

• The Kampala Conference, 2010 passed an amendment defining aggression The International Criminal Court

at The Hague

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Jean-Paul Akayesu• Mayor of Taba township in Rwanda during 1994 genocide• Convicted of genocide and crimes against humanity, first-ever conviction for genocide, life sentence• International Criminal Tribunal for Rwanda, 1998

Pol Pot• Led Khmer Rouge government in Cambodia that

killed an estimated 2 million civilians, 1975-1979• Died 1998 of old age,

evading prosecution for his role in genocide

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Other International Crimes

• Direct and public incitement of genocide

• Torture• Piracy• Slavery• International drug trafficking• International terrorism

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Defenses to Atrocity Crimes

• Military necessity – NO• Mistake of fact – Maybe, possible

mitigation• Mistake of law – NO • Duress – Maybe, possible mitigation• Reprisal – NO• Superior orders – Maybe, possible

mitigation

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Command Responsibility

• Criminal responsibility for conduct of subordinates

• Knowledge– Ordered or knowingly permitted conduct– Knew or should have known of conduct

• Act or omission– Had capability to prevent– Failed to prevent

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Enforcement

Domestic Enforcement• State obligation

– Holds individuals accountable under domestic law

– State must be willing and able

– What about use of non-judicial means?

• Jurisdiction

ICTY courtroom, The Hague

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Enforcement(continued)

• International tribunals formed for a particular purpose– United Nations Security Council

authority– Limited in scope, jurisdiction, time– International Criminal Tribunal for the

Former Yugoslavia– International Criminal Tribunal for

Rwanda

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• The International Criminal Court

– First permanent international criminal court

– Atrocity crimes, Investigation– Complementarity, Admissibility– Penalties– Situations: Uganda, the

Democratic Republic of the Congo, the Central African Republic, Sudan, and Kenya.

The ICC Logo

Enforcement(continued)

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Hybrid Tribunals• International assistance to domestic

courts– Training– Judges and other personnel– Oversight

• Apply domestic and international law– Sierra Leone– Kosovo– Cambodia

Enforcement(continued)

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International Cooperation

• Treaty obligations– State to state– International organizations

• Investigations• Extradition and other

renditionAugusto Pinochet

• Dictator of Chile when government killed, tortured, and abducted civilians, 1979-1990

• Accused of torture and other crimes by Spanish and Chilean judges

• Landmark United Kingdom extradition case, 1999-2000• Chilean court dismissed charges due to his

poor health and mental competence, 2002; died, 2006

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Alternatives to Criminal Trials

• Truth and reconciliation• Alternatives to punishment• Reparation

• Amnesty

A destroyed village in Sudan

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Summary and Conclusion

• International crime is limited but becoming increasingly well-defined

• The international community is expanding ways to hold individuals accountable for atrocity crimes

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