Core International Crimes Article by Johnson Yesaya Mgelwa.

 

PRELIMINARY

International crime is a collective term for certain extreme serious violation of international laws concerning warfare or human rights[1]. Article 5 of the Rome Statute of the International Criminal Court[2] describe four major offences termed as international crimes, the offences are genocide; Crimes against humanity; War crimes and the crime of aggression. These offences are only tried by International Criminal Court (I.C.C) which is a permanent institution with original jurisdiction to try international crimes. International crimes may be tried by domestic courts of any jurisdiction if, the international crimes are incorporated in domestic laws or, the committed crimes constitute other criminal offences and the state decides to sue on available alternative offences. The domestic courts may also try international crimes in fulfilling universal jurisdiction which is solution offered by international laws in dealing with impunity of tyrants and torturers who cover themselves with domestic immunities, amnesties and pardons.

Vivid examples of domestic courts’ efforts to curb international crimes are the indictment of soldiers and political leaders in Bosnia, German and Democratic Republic of Congo. In 2018, the Bosnian state court indicted a former soldier for crimes against humanity. Zoran Adamovic, a former Bosnian Serb Army Soldier arraigned before Bosnian supreme court charged with crimes against humanity such as murder and forced disappearances of Bosniaks and Croats in 1992[3].  On September 2018, the German court found Ibrahim Al. F guilty for war crimes committed by the defendant in Syria. The same year, two commanders of rebel militia called Democratic Forces for the Liberation of Rwanda (FDLR) found guilty of crimes against humanity by the military tribunal of the Democratic Republic of the Congo in Bukavu[4]. The convicted rebel soldiers directly involved themselves in murder and torture of several civilians in the villages of Kamananga and Lumenje (South Kivu) in their military operations, they were sentenced to life imprisonment basing on their offences which were international crimes[5].

CORE INTERNATIONAL CRIMES

I.                    Genocide.

Article 6 of the Rome Statute[6] describe genocide as any act committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group by 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 and forcibly transferring children of the group to another group. Genocide is defined by several other instruments such as Dutch International Crimes Act[7], but the elements constituting the offence of genocide are almost the same. Genocide is an offence which may be constituted by any other criminal offence like murder or torture, but the offence of genocide comes when the killing or torture intends to eradicate or destruct a particular ethnic group. The major and famous genocide events include the 1994 genocide in Rwanda where about 800,000 Tutsi were killed.

On April 1994, a plane carrying Habyarimana and Burundi’s president Cyprien Ntaryamira was shot down over the capital city of Kigali where there were no survivors. The presidential guards and the Hutu militia group known as the Interahamwe (“Those Who Attack Together”) blocked all roads of Kigali and started slaughtering Tutsi blaming them for causing death of the president. Hutu nationalists stirred up war by naming Tutsi as cockroaches of the country who are to be eradicated from the country and they don’t deserve to survive. For a period of one months, more than 200,000 Tutsi and moderate Hutu were already killed together with several foreign people. A civil war took three months where about 800,000 citizens of Rwanda got killed[8].

In the case of Prosecutor v. Bizimungu et al. (ICTR-99-50) “Government II”, before international Criminal Tribunal of Rwanda, the accused persons were jointly charged of genocide for planning, organizing, leading and creating hate against Tutsi which led to mass killing of Rwandese during Rwanda genocide of 1994. Bizamungu who was a minister of health and his three fellows, Jerome Bicamumpaka, Justin Mugenzi and Prosper Mugiraneza were jointly charged of genocide where on 2011, Mugenzi and Mugiraneza convicted for conspiracy to commit genocide. Bicamumpaka and Bizimungu were acquitted by the tribunal, later on 2013, Mugenzi and Mugiraneza on appeal were acquitted basing on errors during ICTR trial[9].

II.                 Crimes Against Humanity.

As per Article 7 of the Rome Statute[10], crime against humanity include Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious or gender; Enforced disappearance of persons; The crime of apartheid; Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The major different between genocide and crime against humanity is that, crimes against humanity do not need to target a particular group of people. Any member of the society may be victim of the crimes against humanity regardless of their affiliation or identity. Also, in crimes against humanity, it is not necessary to prove that there was an overall specific intent to target a particular group of victims but the impacts of the event must be great enough and be of violence which may endanger national peace and security[11].

In the case of Prosecutor v. Jean-Pierre Bemba Gombo[12], Bemba was charged of two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape and pillaging) committed in Central African Republican (CAR) between 2002 and 2003. Bemba went to CAR to provide military assistance to his friend president Ange-Félix Patassé who was at threat of coup de tat. Bemba’s forces involved in torture, killings, persecutions and rape of thousands of civilians of Central Africa Republic. Together with all these efforts of Bemba, the Coup succeeded, Ange-Félix Patassé removed from power. Bemba was found guilty in this case, was sentenced to 18 years in prison[13].

III.              War Crimes.

As per Article 8 bis 2 of the Rome Statute[14], war crimes are serious breaches of Articles of Geneva Convention[15]. Geneva convention is an international instrument which protect citizens affairs or rights during warfare. Geneva Convention put limits in warfare so as to protect innocent citizens from harm. As per Article 8 of the Rome Statute, the acts which constitute war crimes include, willful killing, torture or inhuman treatment, including biological experiments to innocent citizens, willfully causing great suffering, or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or other protected person to serve in the forces of a hostile power; willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial.

The case of Jean Pierre Bemba is the best example of war crimes. Bemba’s armed forces invaded Central Africa Republic to provide military support to a President who was at threat of Coup. Bemba’s militants suppressed riots and demonstration of civilians by forceful means. Several citizens killed, women raped and tortured against provisions of Geneva Convention.

IV.              Crime of Aggression.

As per Article 8 bis 3 of Rome Statute[16], act of aggression “means the use of armed force by a state against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. Planning, preparation, initiation or execution of a political or military action by a state against another state by a person who is in charge of military forces, constitute an offence of aggression. Other elements of the offence of aggression include, the blockade of the ports or coasts of a state by the armed forces of another state; or an attack by the armed forces of a state on the land, sea or air forces, or marine and air fleets of another state. UN security council is an international instrument mandated to keep peace by settling military disputes among UN member states. Part VI of the UN Charter[17], Article 41 of the charter give authority to the council to choose a best way to settle military conflict between member states, but when all other measures don’t work, the military invasion is necessary to force the state to abide to UN security council decision.

Unfortunately, the crime of aggression recently activated in 2017 to allow ICC to receive charges and determine them hence there is no recent case law on an act of aggression. But the history shows that, after WWII, the victorious allied governments established the first international military tribunal to prosecute high rank political or military officers for aggression, The International Military Tribunal (IMT) in Nuremberg German was established where member states were France, USSR, UK and USA.

CONCLUSION

The Rome Statute recognize only four core international crimes which are genocide, crimes against humanity, war crimes and aggression. Now, the offence of terrorism has started to capture the mind of international community because the offences have cross country effects hence, they have international elements and I think they have to be part of the international crimes which can be prosecuted before ICC.

REFERENCE

JOURNAL

Anacleti, Odhiambo, "The regional response to the Rwanda emergency". Journal of Refugee Studies, Vol. 9, No. 3, 1996, p. 303.

TREATIES / CONVENTIONS

UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: https://www.refworld.org/docid/3ae6b3a84.html [accessed 10 January 2023]

International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at: https://www.refworld.org/docid/3ae6b36d2.html [accessed 11 January 2023]

United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: https://www.refworld.org/docid/3ae6b3930.html [accessed 11 January 2023]

Dutch International Crimes Act, No 270 of 2003

CASE LAWS

Prosecutor v. Jean-Pierre Bemba Gombo ICC-01/05-01/08

Prosecutor v. Bizimungu et al. (ICTR-99-50) “Government II

OTHER SOURCES

Detector. “Bosnia Indicts Serb for Crimes Against Humanity in Kljuc”, available at https://detektor.ba/case/predmet-adamovic-zoran-en/ [accessed 11 January 2023]

Trial Tribunal, “Two Militia Men Found Guilty of Crimes Against Humanity”, available at https://trialinternational.org/latest-post/drc-two-militiamen-found-guilty-of-crimes-against-humanity/ [accessed 11 January 2023

PILPG A Global Pro Bono Law Firm, “domestic prosecution of international crimes”, available at https://www.publicinternationallawandpolicygroup.org/lawyering-justice-blog/2019/3/7/domestic-prosecution-of-international-crimes-introduction-of-series [accessed 11 January 2023]

Redress, “The Prosecutor v Jean-Pierre Bemba”, available at https://redress.org/casework/the-prosecutor-v-jean-pierre-bemba/ [accessed 11 January 2023]

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[1] NPPS, “What are international crimes?”, available at https://www.prosecutionservice.nl/topics/international-crimes/what-are-international-crimes [accessed 10 January 2023]

[2] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: https://www.refworld.org/docid/3ae6b3a84.html [accessed 10 January 2023]

[3] Detector. “Bosnia Indicts Serb for Crimes Against Humanity in Kljuc”, available at https://detektor.ba/case/predmet-adamovic-zoran-en/ [accessed 11 January 2023]

[4] Trial Tribunal, “Two Militia Men Found Guilty of Crimes Against Humanity”, available at https://trialinternational.org/latest-post/drc-two-militiamen-found-guilty-of-crimes-against-humanity/ [accessed 11 January 2023

[5] PILPG A Global Pro Bono Law Firm, “domestic prosecution of international crimes”, available at https://www.publicinternationallawandpolicygroup.org/lawyering-justice-blog/2019/3/7/domestic-prosecution-of-international-crimes-introduction-of-series [accessed 11 January 2023]

[6] ibid

[7] Dutch International Crimes Act, No 270 of 2003

[8] Anacleti, Odhiambo, "The regional response to the Rwanda emergency". Journal of Refugee Studies, Vol. 9, No. 3, 1996, p. 303.

[9] IJRC, “Bizimungu”, available at https://ijrcenter.org/international-criminal-law/ictr/case-summaries/bizimungu/ [accessed 11 January 2023]

[10] Ibid. Art 7.

[11] United Nations, “Crimes Against Humanity”, available at https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml [accessed 11 January 2023]

[12] Prosecutor v. Jean-Pierre Bemba Gombo ICC-01/05-01/08

[13] Redress, “The Prosecutor v Jean-Pierre Bemba”, available at https://redress.org/casework/the-prosecutor-v-jean-pierre-bemba/ [accessed 11 January 2023]

[14] ibid

[15] International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at: https://www.refworld.org/docid/3ae6b36d2.html [accessed 11 January 2023]

[16] ibid

[17] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: https://www.refworld.org/docid/3ae6b3930.html [accessed 11 January 2023]