After the end of the Second World War, the allies entered into two agreements. These were the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement) and Charter of the International Military Tribunal (Nuremberg Charter).
When the Nuremberg Trials started, the accused, all Nazi Party members who actively participated in the Nazi Regime’s activities in various capacities, were charged on four counts. These were:-
a. Conspiracy to commit aggression.
b. Commission of aggression.
c. Crimes in the conduct of warfare.
d. Crimes against humanity.
Not all were convicted, some were acquitted and some were convicted on some charges while acquitted on others. At the same time, a number of people were convicted for all four, including Hitler’s right-hand man Hermann Wilhelm Göring.
The Nuremberg Trials showed to the world that perpetrators of heinous war crimes, no matter how powerful they are, would be brought to justice. The first formal codification of international crimes, some of which had been long recognised as forming a part of customary international law, occurred in the Charter of the International Military Tribunal (Nuremberg). Since Nuremberg, these definitions have undergone several changes as a consequence of the changing situation in the international scene with regard to the law of armed conflict. The law knows no social status or political or economic position; it only evaluates on the basis of facts and is equally applicable to all. This fundamental precept is the lynchpin upon which trials for war crimes, crimes against humanity and genocide are conducted.
After the Nuremberg charter, the most important instrument regarding the prosecution of international criminals is the Rome Statute. The Rome Statue has divided the well-defined categories among the international crimes into three broad segments.
The three main categories of crimes under international law are each defined in the Rome Statute of the International Criminal Court(ICC). These are:-
a. War Crimes.
b. Genocide.
c. Crimes against Humanity.
The Nuremberg Charter had defined war crimes as “violations of the laws or customs of war including murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity”.
The Rome Statute gives the following definition of war crimes, it is quite extensive and covers most of the possibilities and it is applied to persons protected under the Geneva Conventions. The following acts are covered:-
a. Willful killing;
b. Torture or inhuman treatment, including biological experiments;
c. Willfully causing great suffering, or serious injury to body or health;
d. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
e. Compelling a prisoner of war or other protected person to serve in the forces of a hostile power;
f. Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
g. Unlawful deportation or transfer or unlawful confinement;
h. Taking of hostages.
The contracting parties are to arrest, prosecute or extradite those individuals who commit grave offences under the definition of war crimes as per the Rome Statute. Additionally, war crimes also include the
following:-
a. Any act falling under the category listed in the Rome Statue and thereby constituting a serious violation of the law of armed conflict, of these, there are twenty-six mentioned heads in the Statute under which any such act could fall.
b. Serious violations of Common Article 3, against any of the individuals who are not taking an active part in the armed conflict, these violations include:
i. Cruelty, mutilation of corpses, torture of prisoners, murder or any other form of violence of the physical person of the person under the power of such perpetrator of violence.
ii. Humiliating, tormenting, outraging the personal dignity and honour of the captive person or person not taking active part in the armed conflict and treating them in a degrading manner.
iii. Holding such people hostage and keeping them for the purpose of use as human shields.
iv. Delivering and executing people on the basis of sentences ordered to be carried out without due process of law being followed in a regular court of law and without the basic principles of justice being adhered to by the authorities conducting the trial.
Any individual who commits an offence under any of the above mentioned heads is therefore, a war criminal. This definition of war crimes has, however, come in for much criticism because of a lack of express mention of weapons such as nuclear warheads. However, given the political sensitivities of such an inclusion, it was prudent on the part of the drafters to stay away from that topic, so as to ensure more countries become parties to the statute.
Genocide is defined in the Rome Statute as a specific act “committed with intent to destroy, in whole or in part, a national, ethnical, religious or racial group, as such”. The following acts amount to genocide when committed intentionally:-
a. Assaulting on the life or person of members of a group.
b. Inflicting such injuries upon the members of a group that bring either bodily or mental harm of a grave variety.
c. Creating such material conditions and situations of life, with the specific malicious intention to do so, whereby the destruction of the group in question becomes either a likelihood or a possibility, either in part or as a whole.
d. The use of forcible contraceptive measures or similar techniques that deliberately seek to prevent the women of the group from giving birth to new members of the group.
e. Using measures ensuring that the children of the group are moved elsewhere and raised as members of another group so as to ensure that the identity of the former group is not preserved into the future.
The definition of genocide in the Rome Statute is similar to the definition provided in in the Genocide Convention. The two essential components are therefore the criminal intent to commit the act and the fact that the targeted are all being victimised by virtue of their common membership in a group. These can be explained as follows:-
a. Intention: When there is no documentary proof or any evidence of an explicitly direct and coherent nature, then the circumstances can prove to be helpful, as was held in a leading case on the matter, a general situation with regard to the repeated, persistent targeting of a group on a systematic basis just because of the targeted individuals belonged to the group coupled with the scale of the violence and the quantum of damage inflicted is sufficient to prove the intention of an accused towards committing the crime of genocide. A pre-conceived plan and apparent facts on the ground demonstrating the existence of such a plan would be sufficient evidence of genocidal intent.
b. Group: Mere intention is not enough and it must be demonstrated that the victims were chosen specifically because they were, by virtue of birth, choice or any other reason, members of a group that the perpetrators intended to destroy. The Yugoslavia tribunal ruled, that for intention of group-targeting to be determined, it is sufficient evidence if it is established that the targeting was done specifically because the said individuals belong to a particular group and to establish this, it is sufficient to be shown that the targeting individuals initiated and carried out the targeting while
knowing that all targeted people belong to a specific and distinct group. It is the group, as such, that must be the target of genocide and not one or several individuals. Hence, the same number of people targeted severally would not be amounting to genocide. However, when targeted jointly due to their membership in such a group, the charge of genocide sticks to the accused.
The one major and significant drawback of this definition is that it does not equally protect all human groups as “Its application is confined to national, ethnical, racial or religious groups”. Therefore, the Rome Statute does not protect from genocide against political or social groups.
Crimes against humanity are defined in the Rome Statute as 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”:-
a. Murder.
b. Extermination.
c. Enslavement.
d. Deportation or forcible transfer of population.
e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law.
f. Torture.
g. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity.
h. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.
i. Enforced disappearance of persons.
j. The crime of apartheid.
k. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Sexual violence is included in the list of crimes against humanity and the Rwanda Tribunal has delivered an important verdict on the inclusion of rape as a crime against humanity in the Akayesu case. The Court held that rape is nothing short of an act of aggression because the crime is not to be viewed as made up of its parts, i.e. the physical act of forced sexual intercourse, but rather it must be viewed as the sum of its parts and it is in this context that rape can be understood. It is an act of wanton and unjustified aggression, and used for the purpose of intimidating the victim, degrading her sense of self-worth, punishing her for belonging to a certain group and humiliating her individuality and outraging her basic human dignity, it therefore is not different to torture. Rape is a physical invasion of a sexual variety and an element of coercion is inherent to such a physical act.
War Crimes, Genocide and Crimes Against Humanity are therefore, downright criminal acts which have received attention in International Law, both in the form of the Nuremberg Charter and then in the form of the Rome Statute. Additionally, the charters of the individual tribunals formed after Nuremberg but before the Rome Statute came into force also have adequate provisions to deal with these crimes.
In spite of the legal framework being in place, crimes against humanity, war crimes, and even genocide continue to take place in our world. The need is for a strong implementation system with the international community taking the lead in ensuring that all states become parties to the Rome Statute.
Let us now turn our focus on to the issue of Non-International Armed Conflict. The fundamental law governing non-international armed conflict is the Common Article 3 of all four Geneva Conventions. However, in addition to it and complementing it, there also exists the Additional Protocol (II).
Article 3 is common to the Geneva Conventions of 1949, it is ‘bound to apply as a minimum’ to all non-international armed conflicts. It has often been called
a mini-Geneva Convention as it includes the essence of the protection extended to victims by the Conventions in a concise form. The drafters had thought that this Article would apply only to a small number of limited non-international armed conflicts around the world. Little did they know that by the turn of the millennium, non-international armed conflicts had far outstripped international ones by sheer weight of numbers. Since this Article is applicable to all conflicts of the non-international variety, it is equally applicable to situations where government-backed forces clash with non-government ones, or where two non-government forces clash against each other, or factional classes within government forces.
The Article stipulates the humane conduct, without discrimination, while dealing with all who do not actively participate in the hostilities, including members of armed forces (regular or otherwise) who “have laid down their arms” or are hors de combat(out of action due to injury or damage) as a consequence of “sickness, wounds, detention, or any other cause”. Unlike the provisions for international armed conflict, Article 3 lays down the bare minimum ‘humane treatment’ standard and doesn’t explicitly include terms such as protection, respect or immunity from prosecution for participation in hostilities. It does however require a fair trial to be given. No procedure is laid down for the registration, verification of status, etc. of the injured and hospital personnel. The Article merely provides for the collection and taking care of the wounded and sick.
An issue with regard to implementation is that most of the participants in non-international armed conflicts, be it the Hezbollah in Lebanon, the Houthis in Yemen, the Taliban in Pakistan or the Maoists in India, are not signatories to the conventions. This means that they can claim to not be bound by these provisions and can resort to any kind of wanton impunity as they please. However, officially, many opposition groups say they are following the law of armed conflict and respect the same. Another aspect of the same problem is that governments often do not wish to recognise insurgents as an official ‘party to the conflict’, or even as a separate entity. They may therefore wish to avoid any statement officially acknowledging that Article 3 is applicable, for fear that this would be read as recognition of the insurgents as an adverse party.
However, Sub-clause (4) of the Article does attempt to assuage such concerns by rendering no legitimacy to the claims of the respective parties, be they state or non-state.
Unlike its widely applied and cited twin, Additional Protocol II, has only 28 articles and many of its provisions are identical to what is already mentioned in Additional Protocol I.
Protocol II deals with non-international armed conflict and, as has been provided in its first article, “develops and supplements Article 3 common to the Conventions of 1949”.
The Preamble to the protocol declares that the humanitarian principles enshrined in Article 3 constitute the foundation of respect for the human person in cases of armed conflict not of an international character and international instruments relating to human rights offer a basic protection to the human person. The Preamble goes on to underscore, “The need to ensure a better protection for the victims’ of internal armed conflicts.” The preamble itself betrays the fact that a proper and complete diplomatic consensus was not reached on this subject between states due to political issues the newly independent, decolonised states, facing armed insurrections internally had with giving a larger scope of application to the Protocol. It therefore says, “In cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience,” this is an example of the Martens clause.
Unlike Common Article 3, Protocol II is slightly more limited in its applicability. Article 1(1) of the Protocol define the material field of its application to all internal armed conflicts which take place within the territory of a state party when it is, “Between the armed forces of the state and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this protocol.”
Article 1(2), however, provides that the Protocol does not apply to in minor incidents such as rioting, sporadic disturbances of an internal nature, law and order issues of a nature that don’t meet the intensity threshold to constitute an armed conflict within the ambit of the Geneva conventions or its additional protocols. The drafters, however, failed to envisage a situation where the government in a state would completely collapse and fighting would be relegated to conflicts between different groups that jostle for power and control over a piece of land or territory. This has been the case in Somalia through out the latter part of the 20th century, in particular the last decade.
The Protocol has a very wide coverage when it comes to the people it protects. The ‘personal field of application’ includes “all persons affected by an armed conflict as defined in Article 1”. It also bars discrimination on basis of religion, race, sex, etc. All people who have ceased to take a part in hostilities, “whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices”. They shall moreover “in all circumstances be treated humanely without any adverse distinction”.
In addition to the acts already prohibited by Article 3, the Additional Protocol II lays down some of its own prohibited acts. These include:-
a. Acts of Terrorism.
b. Outrages upon personal dignity.
c. Rape, enforced prostitution and any form of indecent assault.
d. Slavery and slave trade.
e. Corporal punishment.
f. Threat to commit any of the foregoing acts.
The Additional Protocol II, therefore, elaborates and expounds upon the general protection already given in Article 3.
Internally Displaced People (IDPs) are among the most vulnerable classes of people in the world. They are to non-international and internal armed conflict, what refugees are to international armed conflict. Although, there may be both Internally Displaced People (IDPs) and refugees as a result of both international and non-international armed conflict. Internally Displaced People (IDPs) are like refugees, the only difference while the displacement of refugees from their homes has forced them to seek refuge elsewhere, Internally Displaced People (IDPs) remain within their country of origin but relocate to a safer place within that country. An example of this is the Kashmiri Pandit community, which fled to other parts of India in the aftermath of the commencement of militancy in the Kashmir valley.
A survey that interviewed people driven from their homes by a number of conflicts around the world revealed the staggering scale of displacement – more than half of all people affected by armed hostilities are forced to flee. In the past few years, more displacements have occurred because of internal armed conflict rather than international armed conflict. Today, over half of the world’s IDPs are to be found in five countries affected by such strife: Sudan, Colombia, the Democratic Republic of the Congo, Somalia, Ukraine, Palestine and other non-International Armed conflict countries.
The majority of Internally Displaced People(IDPs) are victims of armed conflict, and it is therefore important to look at this pressing social issue to appreciate the importance for the continued strengthening of the law of armed conflict.
The following are some of the issues that are faced by Internally Displaced People (IDPs) in today’s world:-
a. Displacement of Families: Additional Protocol II guarantees the freedom against forced dislocation. No person can be compelled without justification to leave one’s place of residence. However, unfortunately, the violation of this provision by armed combatants engaged in hostilities has made people leave their homes and in many cases, become separated from their families.
b. Return and Resettlement: The fear of facing violence on return, the inadequacy of money to start a new life are all impediments in the Internally Displaced People(IDP’s) road to eventually returning to their homes or being resettled.
c. Inadequate Documentation: Displaced persons often do not have or have lost certain papers. This can lead to all sorts of problems because they cannot prove their identity or claim property.
These are just a fraction of the issues faced by Internally Displaced People(IDPs), the provisions of IHL are clearly inadequate in this regard. The International Committee Of The Red Cross(ICRC) and the United Nations(UN) must look into enhancing the legal protection available to Internally Displaced People (IDPs), so that they have the freedom of movement, the financial rights to get compensation and thereby afford resettlement and procedural laws should be made flexible for Internally Displaced People(IDPs) to ensure that they don’t suffer because of inadequate documentation.
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