War Crimes - Essay Example

Introduction Violence in many forms has become a distinguishable feature of the present world order. The peculiarity of the violence in twenty first century is the fact that it is international than ever. The international nature of crimes and violence has been well documented by theorists such as Hardt and Negri. According to Hardt and Negri (2004), the present world order is characterised by a global state of war which produces civil war across the countries. The legal validity of concepts of genocide and crimes against humanity could only be examined from this background. Genocides and crimes against humanity have occurred in the past too but its form and content have profoundly changed in the new century so the agency of international community in its preventive and punitive measures. Genocide and crimes against humanity The Preamble of the Rome Statute limits the jurisdiction of the Court to only to "the most serious crimes of concern to the international community as a whole" (Article 5(1) Rome Statute of the International Criminal Court). Genocide, crimes against humanity, and war crimes are considered to be the type of most serious crimes which affect the international community as a whole. The definitions of genocide and crimes against humanity are elaborated in the articles 6-8 are based on provisions in the preceding treaties. The term crimes against humanity appeared well before 1945 to describe the extermination of the Armenian community by the Ottoman Turkish state. The Nuremberg Charter and the negotiations on it led to the making of a provision named as "crimes against humanity". Besides the war crimes, Article 6 (c) of the Nuremberg Charter enumerates crimes against humanity as "murder, extermination, enslavement, deportation, and other inhumane acts committed against anu civilian population, before or during the war or persecutions on political, racial, or religious grounds". The novelty of the conception of crimes against humanity lies in the fact that it includes the aggression caused by a state on its own citizens. There exists a dilemma in the existing conception of crimes against humanity as to whether to link these crimes with international armed conflict or not. If there is no nexus between crimes against humanity and international armed conflict, human rights violations of all types would come under the purview of crimes against humanity and thereby, loosing its specificity. Importantly, the Statute of the Rwanda Tribunal does not include an inherent link between crimes against humanity and armed conflict (Article 3 ICTR Statute). As a result of various reforms through tribunals and ad hoc committees, apartheid, enforced disappearances, rape, imprisonment, persecution too are enlisted as crimes against humanity and a loose concern of "other inhumane acts". It means that genocide and crimes against humanity thus defined are closely related to international human rights law and international humanitarian law. The definition of genocide delineated in the article 6 of the Rome Statute is based on its portrayal by Genocide convention of 1948. It does not differentiate between crimes committed at the times of peace and war. The law of genocide is essentially group based. To take account of genocide, the intent of the crime is duly considered. The legal definition of genocide includes crimes such s killing of the members of a group, causing bodily or mental harm to members of a group, measures for the destruction of a community in whole or in part, programmed prevention of births within a group and forceful transfer of children of one group to another. In crimes against humanity, the perpetrator possesses knowledge about the specific attack, it would be used to target a community, and the violence would be employed as part of widespread and systematic attack. The enforcement of the international law against genocide and crimes against humanity thus effectively challenges the notion that the application of violence by nation states is a priori legitimate and activates a vehicle questioning the claim of nation states pertinent to legitimate violence. The problem lies in the fact that who defines the central elements of the legal concept of genocide and crimes against humanity for the simple reason that it could be different for different actors in the realm of international politics. The legal attempts provide justice to the victims of genocide and crimes against humanity itself generating more violence of the same kind as it is the case in Iraq War or Afghan War. In the words of Hardt and Negri (2004), "the majority human rights position now advocates violence in the service of human rights, legitimated on its moral foundation and conducted by the blue helmets of the UN military". The legitimate violence against genocide and crimes against humanity is established on a moral framework defined by the present international regime. However, there could be "radical pluarity of moral frameworks and judgements" (Hardt and Negri, 2004). The enforcement of new concepts such as genocide and crimes against humanity involves a postmodern attempt to supersede national sovereignty. Hardt and Negri(2004) asserts that "the new imperial justice , for which the conception of crimes against humanity and the activities of the international courts are elements, is aimed at the destruction of the rights and sovereignty of peoples and nations through supranational jurisdictional practices". Here, especially the notion of crime against humanity gives birth to situation wherein the legitimacy of an act is judged not in terms of national or international law. It creates a realm outside the material world of legality. Against humanity is an abstract notion that could make the imperial form of law a reality. The agency of international community Legitimate violence is the concept upon which the idea of judicial actions against genocide and crimes against humanity are premised. Genocide and crimes against humanity are intrinsically international since they have wider effects and strong influence over the conducting of global justice. Genocide and crimes against humanity are jus cogens rules. It means that the prohibition of genocide and crimes against humanity is absolute and all states are equally obliged by these rules even if they do not ratify such rules. In the international law hierarchy, jus cogens rules are the highest rules. What is peculiar to them is that there can be no exceptions to jus cogens rules. According to erga omnes obligations, if one state is victimised by genocide or crimes against humanity, all the states in the world have equal obligation to resort to adequate measures against the aggressor state. International community is entitled to take punitive measures against the perpetrators of genocide and crimes against humanity individually. Universal jurisdiction is an important provision against heinous crimes such as genocide and crimes against humanity. Therefore, a perpetrator of genocide or crimes against humanity could be prosecuted in the national court of any state. On the other hand, Hardt and Negri argue that prevention and punishment of genocide and crimes against humanity are just changed ways "in which legitimate violence is conceived. Here, the important difference is that not only the nation states are in charge of such legitimisation of violence but also the empire that encroaches the entire space of earth. And the agencies of legitimates violence are changed from states to military alliances such as NATO. The beginning of twentieth century saw developments of international law and international treaties which aimed to control the legitimate use of violence by the nation sates. However, in twentieth century, the international humanitarian law and other mechanisms for justice are being used for further legitimization of violence, especially by the transnational alliances based on a self-defined notion of justice. It is an undeniable fact that genocide and crimes against humanity are increasingly becoming the order of the day. But, the very concept of international community itself is problematic as there is no homogeneous entity called international community, What is known as the interest or opinion of international community is the version of the dominant countries or alliances. There are no universal norms or values, which could be accepted or shared by all the states. Conclusion Genocide and crimes against humanity are significant developments in international law and the attempts to prevent and punish heinous atrocities on victimised populations. However, these legal terms are defined based on moral frameworks and judgements which are set out by dominant powers in the new world order. These norms and values are, after all, are not shared by all the countries equally. On the other hand, the conduct of international law against genocide and crimes against humanity is alleged for being partial. The international community has certainly not been successful in implementing the law against the wishes of dominant countries. Bibliography Boot. M. (2002). Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court. Belgium. Intersentia nv. Rome Statute of the International Criminal Court. Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected by procs-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Hague. Public Information and Documentation Section of the ICC. Hardt.M. and Negri, A. (2000). Empire. Mass; Cambridge. Hardt.M. and Negri, A. (2004). Multitude: War and Democracy in the Age of Empire. London. Penguin Books. Read More