International crimes: the distinction between genocide, crimes against humanity and war crimes

(To Marco Valerio Verni)
20/04/16

The recent sentences that have concluded (at least in the first instance) two international trials of great importance, against Radovan Karadzic, the XNUMX-year-old former political leader of the Bosnian Serbs1, and by Vojislav Seselj2, offer an opportunity for a discussion on the concept of "international crimes" that is widely used in media and political dialectics, to better clarify the meaning and scope of the crimes that may be included in it.

This expression indicates the most serious violations of international norms to protect human rights and humanitarian law, committed by both state organs, both from simple individuals: already the London Agreement of 1945 (founding of the Court of Nuremberg) identified three categories of crimes (those against peace - alias war of aggression; those against humanity - including genocide - and those of war), subsequently taken up by the Statutes of the Special Tribunals for the former Yugoslavia and for Rwanda3.

A similar listing is found in the Statute of the International Criminal Court (adopted in the 1998 and in force by the 2002), in particular the 6-8 articles which, respectively, regulate the genocide (Art.6) crimes against humanity (Article 7) and i war crimes (Art. 8).

In particular, for the crime of genocide means any of the following acts committed in order to destroy, in whole or in part, a national, ethnic, racial or religious group, namely:

a) kill members of the group;

b) cause serious injury to the physical or mental integrity of persons belonging to the group;

c) deliberately subject persons belonging to the group to living conditions that would result in the physical destruction, total or partial, of the group itself;

d) impose measures to prevent births within the group;

e) forcibly transfer children belonging to the group to a different group.

crime against humanityinstead, we mean any of the acts listed below, if committed in the context of an extensive or systematic attack against civilian populations, and with an awareness of the attack:

a) homicide;

b) extermination;

c) reduction in slavery;

d) deportation or forced transfer of the population;

e) imprisonment or other serious forms of deprivation of personal liberty in violation of fundamental norms of international law;

f) torture;

g) rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or other forms of sexual violence of similar gravity;

h) persecution against a group or community with its own identity, inspired by political, racial, national, ethnic, cultural, religious or gender reasons within the meaning of paragraph 3, or other reasons universally recognized as not permissible under international law, linked to acts provided for by the provisions of this paragraph or to crimes pertaining to the Court;

i) forced disappearance of people;

j) crime of apartheid;

k) other inhuman acts of similar character intended to intentionally cause great suffering or serious damage to physical integrity or to physical or mental health.

As regards, instead, i war crimes4, following the long list and the literal setting of the 8 article, they can be distinguished in four categories:

The first two refer to international armed conflicts:

1) the "serious violations of the Geneva Conventions of 12 August 1949"5;

2) "other serious violations of applicable laws and customs, within the consolidated framework of international law".

The remaining ones refer to non-international armed conflicts:

3) the "serious violations of the 3 article common to the four Geneva Conventions of 12 August 1949" 6;

4) "other serious violations of applicable laws and customs, within the consolidated framework of international law".

For each of these categories, the Statute expressly identifies the individual cases, giving each number a number that allows an immediate identification according to the principles of criminal codification: thus identified thirty-four war crimes for international conflicts (of which eight are attributable to serious violations of the Geneva Conventions and twenty-six to the laws and customs of war), as well as sixteen war crimes for non-international conflicts (four in reference to the 3 article of the Conventions and twelve to the laws and customs), for a total of fifty cases of war crimes ascribable to the jurisdiction of the Court.

The long list that derives from it arises from the need to arrive at a definition of war crimes that is as much as possible updated (on the basis of already existing customary and conventional international law) and universal, while respecting the principle of legal certainty, expressly referred to the articles 22 and 23 of the same Statute (where two of the cardinal principles of the penal system are recalled: that of "nullum crimen sine lege" he was born in "nothing poena sine lege").

1 Karadzic was judged "responsible for the Srebrenica genocide" by the Hague International Court, and sentenced to 40 years in prison. The judges have instead acquitted the aforementioned for insufficient evidence from the first of the two counts of genocide against him. These are incidents in a series of villages in Bosnia and Herzegovina (Bratunac, Prijedor, Foca, Kljuc, Sanski Most, Vlasenica and Zvornik). For these same events, Karadzic was instead found guilty of crimes against humanity, murder and persecution. Guilty verdict also for the crimes alleged in relation to the siege of Sarajevo, which lasted 44 months, and to the use of 284 UN blue helmets as human shields.

2 The International Criminal Court of the Hague (TPI) acquitted the 31 last March, in the first instance, the Serbian ultranationalist, declaring him not guilty for any of the nine counts of charges he ascribed. Seselj was accused of war crimes and crimes against humanity committed against the Croats and Muslims in the 1991-1993 years, during the conflicts in the former Yugoslavia. He was accused among other things of having supported and promoted the project of "Greater Serbia", of having supported plans of torture, deportation, ill-treatment and other crimes committed by Serb forces against Croats, Bosnian Muslims and the population of Vojvodina (north of Serbia) during the wars of the nineties.

3 International Criminal Tribunals, both established by the UN Security Council (respectively in 1993 and 1994), which list the following criminal offenses: serious violations of the 1949 Geneva Conventions, violations of laws and customs of war, genocide, crimes against humanity (the Tribunal for the former Yugoslavia); genocide, crimes against humanity, violation of art. 3 common to the Geneva Conventions of the 1949 and the II Additional Protocol of the 1977 (Tribunal for Rwanda).

4 The first notion of war crime seems to have appeared for the first time in the Hindu Code of Manu (200 BC), to then find references in Roman law in the ius publicum europeum. In the period of the First World War, the States had accepted the idea of ​​setting up violations of war law encoded by the Hague Conventions of 1899 and 1907 as criminal offenses, and in the 1945 the Charter of the International Military Tribunal of Nuremberg defined crimes of war "violations of law and customs of war", including the murder or mistreatment of prisoners of war, the killing of hostages, the sacking of public and private property, the unjustified destruction of population centers and any devastation not justified by military necessity.

5 The serious infractions of the Geneva Conventions that constitute war crimes, and the relative obligations of the States to pursue them, are identified in the articles. 49-50 Convention I, 50-51 Convention II, 128-130 Convention III, 146-147 Convention IV.

6 Art. 3 common to the Geneva Conventions has been defined as a "mini-treaty", as it constitutes the minimum threshold of humanitarian norms that must generally be observed, in non-international conflicts; in particular it establishes the obligation of States to protect "protected" persons (prisoners, shipwrecked, wounded and sick, non-combatant civilians) by the following acts: a) violence against life and the person, in particular homicides, mutilations, treatments cruel and torture; b) capture of hostages; c) offenses to human dignity, humiliating and degrading treatments; d) the condemnation of convictions without the preliminary judgment of a court constituted regularly, and with the guarantees commonly considered indispensable by the civilized peoples.

(in the opening photo - by Ibrahem Qasim - a bombing of the Yemeni capital by the Saudis)