Defining Genocide, Crimes against Humanity and War Crimes

Genocide

Article 6 of the Rome Statute defines genocide. Genocide is committed when two things can be established: the act and the intent.

The act has been committed when the perpetrator has conducted any of the following five acts towards a group of people:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

The first thing to consider is whether the perpetrator conducted any of the five acts. Specific types of acts are not explicitly laid out but are captured by the wording. For example, the act of not providing the group with enough food or proper hygiene is not explicitly laid out, but could be included in the act of ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction’. The act of imposing measures intended to prevent births within the group captures acts like sexual mutilation or probation of marriages.

The intent is established when the act(s) are committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Here is where some key definitions come into play:

1. ‘Destroy’: physically or biologically destroy (ie. destroying a group’s culture is not included).
2. ‘In whole or in part’: the ‘part’ must be significant enough to impact the whole group. For example, a category of individual such as leaders who are essential to the group’s survival, or individuals in a significant region.
3. ‘Group’: classified only on the basis of nationality, ethnicity, race or religion. Other groups such as political groups are not protected.

Finding evidence that directly proves intent can be difficult. However, it can be inferred from evidence on, for example, the scale of atrocities or the systematic manner of killing.

Crimes Against Humanity

The elements of crimes against humanity are contained in Article 7 of the Rome Statute. In this case, two things must be established: the act and the context.

The perpetrator must have conducted any of the following acts:

1. Murder;
2. Extermination;
3. Enslavement;
4. Deportation or forcible transfer of population;
5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
6. Torture;
7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
8. Persecution against any identifiable group on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, 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;
9. Enforced disappearance of persons;
10. The crime of apartheid;
11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The first thing to consider is whether the perpetrator conducted any of mentioned acts. Some acts like ‘extermination’ may be difficult to understand, but Article 7.2 provides definition or explanation to some of them.

To establish the context, the above act(s) must have been committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Here also we have some key definitions:

1. ‘Attack’: An attack is a course of conduct which involves commission of a large number of the mentioned acts. There must be a link between the acts of the accused and the attack, meaning that the accused’s acts must be part of the attack and must have the possibility of furthering the attack. It can be a single act as long as it is part of the attack.
2. ‘Widespread or systematic’: An attack may be considered widespread on the basis of the scale or nature of the attack or the number of targeted persons. An attack is systematic where the underlying acts are organised and with identifiable patterns of crimes, instead of being random. The existence of a policy to carry out such acts, the mobilisation of significant resources or the participation of officials may serve as proof as well.

1. ‘Directed against any civilian population’: This means that the primary target of the attack must be civilians. Note that members of armed groups who have surrendered or are injured are considered civilians. The civilian nature of a group is determined based on factual issues such as the number of non-civilians within the targeted group, the resistance offered by the persons attacked and the nature of the crime committed
2. ‘Knowledge’: The accused must (1) know that there is an attack on the civilian population and (2) know that his acts form part of the attack. The accused does not need to know the full scale of the attack or all the details of the policy but he has to have knowledge of the overall context.
3. The attack must be pursuant to or in furtherance of a state or organisational policy

War Crimes

The first thing to be noted here is that it is lawful for states and armed groups to attack military targets. However, even if an attack is on a legitimate target, it must be proportional and should not cause collateral damage which exceeds the military advantage gained by the attack.

Article 8 of the Rome Statute defines war crimes. Similar to the above-mentioned crimes against humanity, an act is considered a war crime only when it is committed in an applicable context.

Article 8 stipulates numerous acts, some of which include murder, mutilation, cruel treatment, torture, sentencing or execution without due process, attacking civilians, attacking protected objects, rape and sexual violence.

Regarding the context, war crimes can occur in both international and non-international armed conflicts. This distinction has to be drawn as it affects the application of Article 8. Thus the first issue is to consider whether an international or non-international armed conflict exists. An armed conflict is international when it takes place between two or more states. On the other hand, it is non-international if it takes place within a state, for example between the state and other armed groups inside its borders.

The second issue is whether the act(s) of the perpetrator have taken place in the context of, and are associated with, an armed conflict. The perpetrator must be aware of the factual circumstances that established the existence of an armed conflict. This can be proven by the fact that, for example, the perpetrator is a member the army or an armed group and that the victims are civilians.

Reference

Morgane Landel, “Training Guide: International Criminal Law for Syrian Human Rights Defenders,” Euromed Rights, 2015. https://euromedrights.org/wp-content/uploads/2015/12/EuroMed-Rights-TTK-Syria-ICL-EN.pdf.

 

Last Updated: August 21, 2018

Author: Nova Pui Yan Tang