INTERNATIONAL LEGAL ORDER IN THE CONTEXT OF HUMAN RIGHTS AND CRIMINAL LAW

1. INTERNATIONAL LEGAL ORDER IN THE CONTEXT OF HUMAN RIGHTS AND CRIMINAL LAW Mian Ali HaiderL.L.B., L.L.M. (Cum Laude) U.K.

2. INTRODUCTION • Murder has been a sin since Cain killed Abel, long before the first attempts by lawyers to codify penal law, before the Hammurabi and other ancient codes. • More fundamentally, murder is a crime by virtue of natural law, which is prior to and superior to positivistic law. • Crimes against humanity and civilization were crimes before the British, French and Russian note condemned the Armenian massacres in 1915.

3. INTRODUCTION • According to article 38 of the Statute of the International Court of Justice. • general principles of law are a principal source of law. • Not only positivistic law – • not only treaties, protocols and charters – • but also the immanent principles of law are sources of law before the ICJ and can be invoked.

4. PRINCIPLES OF LAW • These are basic principle of justice and of common sense. • “ex injuria nonoritur jus” • which lays down the rule that out of a violation of law no new law can emerge and no rights can be derived. • “ubi jus, ibiremedium” • where there is law, there is also a remedy, in other words, where there has been a violation of law, there must be restitution to the victims • “Thief cannot keep the fruits of the crime” • “The law must be applied in good faith, uniformly, not selectively”. • Thus, there is no international law à la carte • This principle was reaffirmed by the Permanent Court of International Justice in its famous judgement in the Chorzow Factory Case in 1928

5. International Legal Order in the Context of Human Rights and Criminal Law • Domestic Remedies • Methods of International Enforcement • Pre-Nuremberg • Nuremberg • Modern Tribunals • International Criminal Court • Sources of International Law

6. Domestic Remedies • Who is in power? • Who has the power? • Who has jurisdiction? • Who has the right? • Whose law applies?

7. Why Domestic Remedies Will Not Work for Certain Crimes • Genocide • Terrorism • Crimes of Aggression • War Crimes • Trafficking in People, etc… • -- All stem from political power, not individual action--

8. The Armenians • In 1915 the Turkish government presided over the killing by firing squad, bayoneting, bludgeoning, and starvation of nearly 1 million Armenians. • Efforts to bring the Turkish leaders to justice after World War I fizzled and set the stage for later atrocities in Europe.

9. “It was knowingly and lightheartedly that Genghis Khan sent thousands of women and children to their deaths. History sees in him only the founder of a state…. The aim of war is not to reach definite lines but to annihilate the enemy physically. It is by this means that we shall obtain the living space we need. Who today still speaks of the massacre of the Armenians?”

10. Hitler, August 1939 • One week later the Germans invaded Poland and began the extermination of the Polish Jews, Roma and undesirables. • By the end of World War II, some 6 million Jews and 5 million Poles, Roma, Communists and other undesirables had been slaughtered.

11. Nurnberg (Nuremberg) • Nazi leaders tried for four crimes: • Conspiracy to Commit Wars of Aggression Against Independent Sovereigns • Crime Against Peace – AGGRESSIVE WAR • War Crimes - MURDER AND ILL-TREATMENT OF CIVILIAN POPULATIONS OF OR IN OCCUPIED TERRITORY AND ON THE HIGH SEAS; and DEPORTATION FOR SLAVE LABOR AND FOR OTHER PURPOSES OF THE CIVILIAN POPULATIONS OF AND IN OCCUPIED TERRITORIES

12. COUNT FOUR • MURDER, EXTERMINATION, ENSLAVEMENT, DEPORTATION, AND OTHER INHUMANE ACTS COMMITTED AGAINST CIVILIAN POPULATIONS BEFORE AND DURING THE WAR • PERSECUTION ON POLITICAL, RACIAL, AND RELIGIOUS GROUNDS IN EXECUTION OF AND IN CONNECTION WITH THE COMMON PLAN MENTIONED IN COUNT ONE • Included only acts from the date of the invasion of Poland in 1939.

13. How did it Begin? There is no one reason the genocide began, rather it is due to many historical and social changes in Rwanda over more than 100 years. These include: • Tutsi formed the basis of the government, urged on by colonial rule, until the early 1960s, when a Hutu government came to power. After years of being portrayed and treated as inferior to the Tutsi, the Hutu used the distinctions already in place to demote the Tutsi to second class citizens. • During the 1970s, a massacre of Hutu by the Tutsi occurred in the neighbouring country of Burundi. Thousands of Hutu refugees came to Rwanda, while thousands of Tutsi left for neighbouring Uganda, altering the power balance in Rwanda [4].

14. The Genocide ConventionFirst UN Convention, adopted December 9, 1948; entry into force 12 January 1951 • “any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, such as: • Killing members of the group; • Causing serious bodily or mental harm to members of the group; • Conditions of life calculated to bring about the physical destruction of the group; • Measures intended to prevent births within the group; • Forcibly transferring Children away from the group.

15. Major Genocides Since 1948 • Cambodia: Over 2 million in 3.5 years • Iraq: Over 200,000 Kurds by gas and chemical attacks in 1989-90 • Bosnia and Kosovo – Over 100,000 Muslims massacred • Rwanda – Almost 1 million, mostly hacked to death • Many others

16. Major International Treaties Specific to International Criminal Law • Genocide Convention 1948 (US ratification 1988) • Dec. 10, 1948 Universal Declaration of Human Rights, detailing human rights and fundamental freedoms (Statement of principles, not a treaty) • Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity; 26 November 1968, entry into force 11 November 1970 (no US) • Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity; Adopted by General Assembly resolution 3 December 1973 • Rome Statute of the International Criminal Court

17. International Bill of Human Rights Universal Declaration of Human Rights • International Covenant on Economic, Social and Cultural Rights (1966/1976; US signed 1977) • International Covenant on Civil and Political Rights (1966/1976; US 1992) • Optional Protocol to the International Covenant on Civil and Political Rights (1966/1976; no) • Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (1989/ -- / no)

18. Selected International Treaties on Conduct • International Convention on the Elimination of All Forms of Racial Discrimination (1965 /1969 US 1994) • Convention on the Elimination of All Forms of Discrimination against Women (1979 /1981 US signed 1980) • Convention on the Rights of the Child (1989 /1990 US signed 1995) • Optional Protocols on armed conflict and prostitution/pornography ratified by US 2002 • Slavery Convention (1926 / 1955 US signed 1956) • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984 / 1987 US 1994, no to OP) • http://www.unhchr.ch/html/intlinst.htm

19. The Crime of Genocide • Article 5 of the statute took the definition of “genocide” verbatim as it was defined in Genocide Convention (1948). • “Genocide means 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; • Forcibly transferring children of the group to another group.

20. GENOCIDE IS… To simplify this definition “genocide is organised and unilateral mass killing on the basis of ethnicity.” [2]

21. THEORIES OF GENOCIDE Genocide as Social Control - Bradley Campbell • This theory suggests genocide belongs to a part of social life that incorporates law and gossip, aspects of society that are used to control and manipulate. Campbell assumes that genocide is organised, lethal, unilateral and involves collective liability [6]. • Cultural distance must be present between the groups involved and society should be organised along “ethnic lines, where there is a higher degree of ethnic visibility”[7]. This creates unequal statuses between groups, convincing citizens one group is evil and must be destroyed in order to preserve the society.

22. THEORIES OF GENOCIDE Genocide as Transgression – Dan Stone • Stone suggests that genocides stem from the creation of “ecstatic communities based on a radical form of social inclusion” [8], where societies need to use up their excess energy, releasing it as an act of catastrophic violence. • Tensions already within society reach their peak, urged on by the government’s validation of extreme actions, to the point where a collective euphoria results in an event that is a transgression from the normal functioning of society.

23. STAGES OF GENOCIDE “Genocide is a process that develops in eight stages that are predictable but not inexorable. At each stage, preventive measures can stop it. The later stages must be preceded by the earlier stages, though earlier stages continue to operate throughout the process”. The eight stages of genocide are: Classification Organization Extermination Symbolization Polarization Denial Dehumanization Preparation

24. CLASSIFICATION: • All cultures have categories to distinguish people into "us and them" by ethnicity, race, religion, or nationality: German and Jew, Hutu and Tutsi. Bipolar societies that lack mixed categories, such as Rwanda and Burundi, are the most likely to have genocide.

25.  SYMBOLIZATION • We give names or other symbols to the classifications. We name people "Jews" or "Gypsies", or distinguish them by colors or dress; and apply them to members of groups. Classification and symbolization are universally human and do not necessarily result in genocide unless they lead to the next stage, dehumanization. When combined with hatred, symbols may be forced upon unwilling members of pariah groups: the yellow star for Jews under Nazi rule, the blue scarf for people from the Eastern Zone in Khmer Rouge Cambodia.

26. DEHUMANIZATION: • One group denies the humanity of the other group. Members of it are equated with animals, vermin, insects or diseases. Dehumanization overcomes the normal human revulsion against murder.

27. ORGANIZATION: • Genocide is always organized, usually by the state, though sometimes informally (Hindu mobs led by local RSS militants) or by terrorist groups. Special army units or militias are often trained and armed. Plans are made for genocidal killings.

28. POLARIZATION: • Extremists drive the groups apart. Hate groups broadcast polarizing propaganda. Laws may forbid intermarriage or social interaction. Extremist terrorism targets moderates, intimidating and silencing the center.

29. PREPARATION: • Victims are identified and separated out because of their ethnic or religious identity. Death lists are drawn up. Members of victim groups are forced to wear identifying symbols. They are often segregated into ghettoes, forced into concentration camps, or confined to a famine-struck region and starved.

30. EXTERMINATION: • Extermination begins, and quickly becomes the mass killing legally called "genocide." It is "extermination" to the killers because they do not believe their victims to be fully human. When it is sponsored by the state, the armed forces often work with militias to do the killing. Sometimes the genocide results in revenge killings by groups against each other, creating the downward whirlpool-like cycle ofgenocide.

31. DENIAL: • It is among the surest indicators of further genocidal massacres. • The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. • They deny that they committed any crimes, and often blame what happened on the victims. They block investigations of the crimes, and continue to govern until driven from power by force, when they flee into exile. There they remain with impunity, like Pol Pot.