crime against humanity essay

What Counts as a Crime Against Humanity?

Jan 28, 2019 | Content , Essays , Online Scholarship

By  Gerald L. Neuman

The International Criminal Court (ICC) makes headlines around the world when it issues its occasional judgments. But most of the work of fighting impunity for severe crimes condemned by international law depends on national enforcement. Two separate efforts are currently underway to strengthen international cooperation in ensuring national prosecution: 1) a multi-year project of the International Law Commission (ILC) to draft articles for a future convention on the prevention and punishment of crimes against humanity, comparable to the existing Genocide Convention and Convention Against Torture; and 2) an episodic state-led initiative to draft a mutual legal assistance treaty for the most serious international crimes. The Human Rights Program at HLS recently convened a private workshop to discuss the vitally important ILC project.

A key issue in establishing state obligations to prosecute international crimes involves the choice of a definition that is appropriate to the obligations that are being imposed. The notion of “crimes against humanity” has a long history, but its definition has evolved over the years. The definition negotiated for the Rome Statute, which created the ICC—an international tribunal with a limited capacity to prosecute and adjudicate—may not provide the right definition for an obligatory system of consistent national prosecution.

The Rome Statute enumerates (section 7) ten offenses amounting to crimes against humanity, plus a residual category for comparable inhumane acts. Some of these offenses are self-evidently atrocious, like extermination, while others cover a broad range of conduct, like imprisonment and deportation. The whole enumeration is subject to a “chapeau” element intended to justify regarding them as severe, namely that the action is performed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.  A particular defendant need only have performed a single instance of the conduct to be guilty of a crime against humanity; much of the opprobrium for low-level perpetrators arises from the fact that they have participated in a large-scale attack on civilians.

Unfortunately, the pivotal term “attack” received a seemingly formalistic definition in section 7. Taken literally, no physical violence is necessary for an attack, but merely multiple instances of any conduct on the list, pursuant to a state policy. Commentators have pointed this out, but the ICC has not had occasion to give a narrowing interpretation. After all, only extreme situations come before the ICC. Not only is the Court’s capacity limited to a small number of cases—the Rome Statute also restricts the pool by requiring a finding that the case is of sufficient gravity to justify the Court’s attention.

What works for a court of such limited jurisdiction may not be suitable for a treaty obligating states to pursue comprehensive enforcement. The issue is not worrisome in regard to the offense of extermination, but it becomes problematic in regard to the offense of imprisonment in violation of fundamental rules of international law. Past decisions have read such language broadly, to include detention that complies with national law if the national statute violates an international human rights norm. International tribunals have had little incentive to restrict this definition when the detention occurs in connection with a genuine violent attack on civilians. The criminal code of Australia spells out the standard for imprisonment as met by any violation of articles 9, 14, or 15 of the International Covenant on Civil Rights. The result could be that a disproportionate policy of pretrial detention, which is common in many countries, amounts as such to a crime against humanity and that states are obliged to prosecute the judges and jailers who implement it.

The designers of a future treaty on crimes against humanity need to deal explicitly with this definitional issue and its consequences. One possibility would be to clarify or revise the definition of an “attack” for purposes of the treaty. Similarly, other safeguards could be adopted to countervail against the borrowed definition. One cannot simply rely on prosecutorial common sense to eliminate the problem in practice, for several reasons. First, the ILC project would also enable nonnationals to raise the risk of falling victim to a crime against humanity as an absolute defense against removal. And in some countries (though not Australia), the criminal justice system will enable private prosecution of crimes against humanity. This important new treaty needs a solution appropriate to its context.

Gerald L. Neuman is the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, and the Co-Director of the Human Rights Program at HLS. He teaches human rights, constitutional law, and immigration and nationality law. His current research focuses on international human rights bodies, transnational dimensions of constitutionalism, and rights of foreign nationals. He is the author of Strangers to the Constitution: Immigrants, Borders and Fundamental Law (Princeton 1996), and co-author of the casebook Human Rights (with Louis Henkin et al., Foundation Press).

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Crimes against humanity and the development of international law.

American jurists in occupied Germany developed international law with the concept of crimes against humanity, then grappled with its meaning.

Top Image: Judges of the International Military Tribunal. United States Army Signal Corps photo courtesy of the Harry S. Truman Library & Museum, 2004-437.

One of the great legal innovations of the post-war world is the concept of crimes against humanity. Aimed at the protection of civilian populations during both peacetime and wartime, even from civilian populations’ own governments, it remains a major pillar of international law to this day. The revolutionary concept was developed on the eve of the Trial of the Major War Criminals at Nuremberg  (1945-1946), and then sharpened in subsequent US trials in occupied Germany between 1946 and 1949.

The world had been disturbed by mass crimes against civilians throughout the nineteenth and early twentieth century, ranging from atrocities during the Greek war of independence to pogroms against Jews in the Russian empire. The Hague Conventions of 1899 and 1907 were the first international agreements to define laws and customs of war on land and sea. But they limited themselves to outrages committed in wartime between states against one another’s soldiers, sailors, or civilians during and after combat operations. Deliberate abuses of a country’s own citizens were considered beyond the reach of international law. The Hague Conventions addressed those kinds of crimes only vaguely in their preambles, which noted that populations remained under protection of the “laws of humanity,” regarding incidents occurring outside the provisions of conventions themselves.

In May 1915 during World War I, the Entente powers of Great Britain, France, and Russia condemned the Ottoman Turkish government’s mass killing of its Armenian population in eastern Anatolia by referring to “new crimes … against humanity and civilization.” Delegates at the Paris Peace Conference in 1919 hoped to hold Turkish officials criminally responsible. But the US delegation, though equally appalled by Turkish actions, rejected the notion that prosecutions could occur without an existing statute. Though the Germans could be prosecuted for combat and occupation related war crimes under various articles of the Hague Conventions, the vague reference to laws of humanity were not enough to try Turkish offenders.

The unprecedented nature of Nazi Germany’s crimes against Jews and other civilian populations in Europe were clear to governments-in-exile, Allied diplomats, and neutral observers who received reports from German-occupied Europe throughout World War II. It was also certain that Nazi crimes against civilian populations were distinct from German military operations, that crimes on a large scale had begun before the war against Jews and others who were actually German citizens, and that these crimes were systematic in nature, carried out at the behest of the government and not by a few rogue military or police officers without official approval.

President Harry Truman selected Supreme Court Justice Robert Jackson Trial of the Major War Criminals at Nuremberg to represent the United States at the June-July 1945 London Conference, which created the machinery for the International Military Tribunal, the court that would try the major Nazi criminals at Nuremberg. Jackson had known Hersch Lauterpacht, a distinguished scholar of international law originally from the Lvov region of East Galicia who had immigrated to England in the 1920s and who was now on the British legal team. Lauterpacht still did not know the fate of his family in the Lvov region; as Jews they had all been murdered. In the wake of World War II, Lauterpacht and Jackson sought a new kind of legal instrument to address Nazi crimes.

Justice Robert Jackson at the Nuremberg Trial. The United States Holocaust Memorial Museum, courtesy of Harry S. Truman Library.

The London Charter of August 8, 1945 established the International Military Tribunal. Article 6 of the Charter contained the laws under which the Tribunal would try the major Nazi criminals ranging from government ministers to top military commanders. These were Crimes against Peace (i.e., launching a war of aggression), conventional war crimes as established by the Hague Conventions, and Crimes against Humanity, defined by article 6 c as follows:

murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The most important legal innovations included “any civilian population,” “before or during the war,” and “whether or not in violation of the domestic law of the country where perpetrated.” In theory, international law could hold Nazi leaders criminally liable for offenses against their own citizens in peacetime, irrespective of whether domestic law permitted their actions. The vague statements of the Hague Conventions concerning the “laws of humanity” now had teeth. After the Trial of the Major War Criminals concluded, Truman wrote Francis Biddle, the US judge at Nuremberg, that, “An undisputed gain coming out of Nuremberg is the formal recognition that there are crimes against humanity.”

Francis Biddle. The National WWII Museum, Gift of Dylan Utley, 2012.019.756.

Yet the new concept was not accepted as a whole. On the eve of the trial, the English and French texts of Article 6 c were harmonized with the Russian text, substituting a comma for the possibly mistaken semicolon between the phrases “during the war” and “or persecutions.” The comma tied the two parts of the law together so that a crime against humanity only occurred legally if it was committed “in execution of or in connection with any crime within the jurisdiction of the Tribunal,” that is, in connection with aggressive war or conventional war crimes. This phrasing became known as the “war nexus.” It meant that pre-war Nazi actions against German civilians were not crimes against humanity by the language of the London Charter unless prosecutors could tie such acts to the primary crime investigated by the tribunal, Germany’s preparations for war.

The small adjustment in punctuation limited the reach of the new concept for those remaining uncomfortable with the primacy of international law over individual state sovereignty. It might have eased the minds of the Soviets, who had persecuted whole populations within the Soviet Union on political and ethnic grounds; the British and the French, who had committed violent acts within their empires (the French at Sétif in Algeria on V-E Day itself); and even the United States for its own racial discriminatory policies. As Jackson himself said, “we have some regrettable circumstances in our own country in which minorities are unfairly treated.” Historians argue today that the required war nexus existed in the case of Nazi Germany. Its pre-war persecution of political opponents and Jews was  aimed at preventing a stab-in-the-back during wartime, which the Nazis believed responsible for Germany’s defeat in 1918. But this was not fully understood at Nuremberg.

The International Military Tribunal’s judgment in October 1946 ruled that pre-war Nazi actions against German Jews, German political opponents, and others, “revolting and horrible as many of these crimes were,” were not crimes against humanity as defined in the Charter and were thus not criminal in the eyes of the court. On the other hand, the tribunal ruled that the Germans had committed numerous crimes against humanity during  the war. German war crimes against civilians being so extensive, ranging from the mass deportation of resistors to slave labor in concentration camps to mass starvation on the Eastern front to mass shooting in the USSR to mass gassing in Poland, the judgment did not parse between war crimes and crimes against humanity. It mixed them in a joint category, noting that “from the beginning of the war in 1939, War Crimes were committed on a vast scale, which were also Crimes against Humanity….”

It was up to subsequent tribunals to sharpen the concept of crimes against humanity. In December 1945, the four occupation powers in Germany issued Control Council Law No. 10. The law governed the judicial punishment of lower-level Nazi perpetrators. Crimes against humanity were included in the charter, but redefined. They defined additional specific crimes such as torture and rape. Crimes against humanity also stood on their own, separated from crimes against peace, as the war nexus was absent from the text. Article II c of Control Council Law No. 10 thus defined crimes against humanity as follows:

Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.

American Military Tribunals held 12 “subsequent” trials in Nuremberg between 1946 and 1949. Most of these American tribunals focused on a distinct professional segment of German society to demonstrate how that segment had diverged from western liberal traditions. The cases included a “Medical Case” against German physicians; a “Justice Case” against German jurists including judges and prosecutors; a “High Command Case” against senior German military officers; a “Ministries Case” against senior government officials; three separate cases against leading industrialists, and so on.

Most of the 183 defendants in the subsequent Nuremberg trials were indicted for war crimes and crimes against humanity, and many were convicted of both. Taken together, the tribunals managed to come to some consensus on what exact factors defined crimes against humanity. For instance, the law’s reference to civilian populations meant for the tribunals that crimes against humanity were not isolated incidents, but mass crimes, systematic in nature, committed as a measure of state. They were also committed not in occupied territory such as Poland or the Soviet Union, where even particularly severe mass crimes against civilians were still governed by the Hague Conventions as war crimes, but in friendly unoccupied regions such as Hungary, a German ally during the war. Thus Edmund Veesenmayer, the Reich plenipotentiary in Hungary in 1944, was found distinctly guilty of crimes against humanity for facilitating the deportation of Hungary’s Jews to Auschwitz.

Edmund Veesenmayer. United States Holocaust Memorial Museum, courtesy of Robert Kempner.

The tribunals were split on the more daring aspects of the crimes against humanity statute. The judges were not innovative juridical scholars. They came from state courts in the United States rather than US federal courts, none had international law experience, and most were conservative concerning the ability of international statutes to trump national sovereignty. Thus, in considering pre-war Nazi crimes against humanity, most of the tribunals assumed the validity of the war nexus from the London Charter, even though Control Council Law No. 10 had deliberately omitted it, and even though US officials had proposed an amendment defining crimes against humanity as having taken place from the moment the Nazis assumed power in January 1933. The tribunal trying senior members of the Friedrich Flick coal and steel concern argued that the omission of the war nexus in Control Council Law No. 10 was surely accidental, and that consequently the tribunal had no jurisdiction over pre-war German actions. The tribunal trying Oswald Pohl and members of the SS Economic Administrative Main Office argued that domestic German laws, even those imposed by Nazi terror, were the business of the German people, not the tribunal itself.

Consequently, the tribunals were also cautious with regard to Nazi crimes against German nationals. The Nuremberg Medical Case focused primarily on wartime medical experiments on foreign nationals in concentration camps. The tribunal touched on mass killings of the disabled under Nazi Germany’s euthanasia program mass killings of the disabled under Nazi Germany’s euthanasia program , as lead defendant Karl Brandt had headed the program, but it excluded euthanasia killings of German nationals as criminal. Rather its judgment pointed out that “almost at the outset of the program non-German nationals were selected for euthanasia.” The same tribunal tried members of the Race and Settlement Main Office and concluded that in the case of Richard Hildebrand, the Higher SS and Police Leader in Danzig-West Prussia, that “euthanasia, when carried out under state legislation against citizens of the state only, does not constitute a crime against humanity.”

Karl Brandt on trial at the Palace of Justice in Nuremberg, Germany. US Army. Photo No. OMT-I-D-144.

The American tribunal for the “Justice Case” was more audacious, perhaps as it was forced to grapple with the validity of German law itself. Though the defendants were not tried for their pre-war activities, they were tried for wartime transgressions against “any civilian population,” including German Jews. The court also noted that many of the defendants’ transgressions–ranging from approving seizure of Jewish property to selective prosecution of Jews to the denial of civil status to Jews in German courts, to the punishment of sexual crimes having to do with racial mixing–were based on laws that appeared between 1933 and 1939 which the tribunal deemed arbitrary. 

The tribunal thus had no patience with the defense arguments that German law legitimized the defendants’ actions, or that crimes against humanity was a law unjustly applied after the fact– ex post facto . “The Nuremberg Tribunals,” read the judgment, “are not enforcing German law…. On the contrary, the jurisdiction of this tribunal rests on international authority.” The defendants were proven to be willing political advocates of extra-Nazi programs. They acted based on ideology rather than law, confident that they would never be held to account.

American jurists in occupied Germany developed international law with the concept of crimes against humanity, then grappled with its meaning, refining it within an emerging post-war world. It was up to the international community to develop the concept further. 

In December 1946, the UN General Assembly affirmed the legal principles of the London Charter and stated its intention to incorporate them into an international criminal code. The Cold War slowed this process due to differences over how certain crimes, from aggressive war to crimes against humanity itself, were to be defined. In 1996, owing to the end of the Cold War and the mass killings of civilians in Yugoslavia and Rwanda civil conflicts, the UN revisited the Nuremberg principles when creating ad hoc tribunals to adjudicate mass killings in those countries and in developing the 1998 Rome Statute for the International Criminal Court, which re-defines crimes against humanity.

The Rome Statute, adhered to by 123 countries, expands the list of individual crimes against humanity to include a variety of sexual crimes as well as “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” Critical too, however, is this. As contemporary mass atrocities have occurred within states rather than between them, the nexus connecting crimes against humanity to international war has been removed once and for all. In theory and practice, state officials are responsible to the international community for the treatment of their own citizens.

Meet the Author 

Norman JW Goda is the Norman and Irma Braman Professor of Holocaust Studies at the University of Florida. He received his PhD from the University of North Carolina at Chapel Hill. He studies modern European history and specializes in the history of the Holocaust, war crimes trials, and twentieth century diplomacy. He teaches courses on the Holocaust and Nazi Germany from historical and interdisciplinary perspectives. Goda has published extensively and served as a consultant to the US and German governments, as well as for various radio, television, and film documentaries in the US, Europe, and Israel.

Further Reading

Bassiouni, M. Cherif. Crimes Against Humanity: Historical Evolution and Contemporary Application . New York, 2014.

Douglas, Lawrence. The Memory of Judgment: Making Law and History in the Trials of the Holocaust . New Haven, CT, 2001.

Heller, Kevin Jon. The Nuremberg Military Tribunals and the Origins of International Criminal Law . New York, 20212.

Pendas, Devin O. Democracy, Nazi Trials, and Transitional Justice in Germany, 1945-1950 . (New York, 2020).

Priemel, Kim Christian. The Betrayal: The Nuremberg Trials and German Divergence . New York, 2016.

Sands, Philippe. East West Street: On the Origins of “Genocide” and “Crimes Against Humanity.” New York, 2016.

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• Definitions
• Atrocity Crimes

Crimes Against Humanity

• Ethnic Cleansing

It is not clear in which context the term “crimes against humanity” was first developed. Some scholars [1] point to the use of this term (or very similar terms) as early as late eighteenth and early nineteenth century, particularly in the context of slavery and the slave trade, and to describe atrocities associated with European colonialism in Africa and elsewhere such as, for example, the atrocities committed by Leopold II of Belgium in the Congo Free State. Other scholars [2] point to the declaration issued in 1915 by the Allied governments (France, Great Britain and Russia) condemning the mass killing of Armenians in the Ottoman Empire, to be the origin of the use of the term as the label for a category of international crimes.

Since then, the notion of crimes against humanity has evolved under international customary law and through the jurisdictions of international courts such as the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Many States have also criminalized crimes against humanity in their domestic law; others have yet to do so.

Crimes against humanity have not yet been codified in a dedicated treaty of international law, unlike genocide and war crimes, although there are efforts to do so. Despite this, the prohibition of crimes against humanity, similar to the prohibition of genocide, has been considered a peremptory norm of international law, from which no derogation is permitted and which is applicable to all States.

The 1998 Rome Statute establishing the International Criminal Court (Rome Statute) is the document that reflects the latest consensus among the international community on this matter. It is also the treaty that offers the most extensive list of specific acts that may constitute the crime.

Rome Statute of the International Criminal Court

Article 7 Crimes Against Humanity

• Extermination;
• Enslavement;
• Deportation or forcible transfer of population;
• Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
• 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, 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;
• 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.
• ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

Elements of the crime

According to Article 7 (1) of the Rome Statute , crimes against humanity do not need to be linked to an armed conflict and can also occur in peacetime, similar to the crime of genocide. That same Article provides a definition of the crime that contains the following main elements:

• Imprisonment;
• Grave forms of sexual violence;
• Persecution;
• Other inhumane acts.
• A contextual element : “when committed as part of a widespread or systematic attack directed against any civilian population”; and
• A mental element : “with knowledge of the attack”

The contextual element determines that crimes against humanity involve either large-scale violence in relation to the number of victims or its extension over a broad geographic area (widespread), or a methodical type of violence (systematic). This excludes random, accidental or isolated acts of violence. In addition, Article 7(2)(a) of the Rome Statute determines that crimes against humanity must be committed in furtherance of a State or organizational policy to commit an attack. The plan or policy does not need to be explicitly stipulated or formally adopted and can, therefore, be inferred from the totality of the circumstances.

In contrast with genocide, crimes against humanity do not need to target a specific group. Instead, the victim of the attack can be any civilian population, regardless of its affiliation or identity. Another important distinction is that in the case of crimes against humanity, it is not necessary to prove that there is an overall specific intent. It suffices for there to be a simple intent to commit any of the acts listed, with the exception of the act of persecution, which requires additional discriminatory intent. The perpetrator must also act with knowledge of the attack against the civilian population and that his/her action is part of that attack.

[1] For example, William Schabas, Unimaginable Atrocities – Justice, Politics, and Rights at the War Crimes Tribunals , Oxford University Press, 2012 – p. 51-53.

[2] For example, M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law , Martinus Nijhoff Publishers, 1999, p.62

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Article Contents

• 1. A Duty to Prosecute Crimes against Humanity — Under All Circumstances?
• 2. The Burning Political and Normative Question
• 3. An Analysis of the Draft Articles and a Doctrinal Question for the ILC
• 4. Conclusion
• Acknowledgement
• < Previous

Is there Something Missing in the Proposed Convention on Crimes Against Humanity? A Political Question for States and a Doctrinal One for the International Law Commission

• Article contents
• Figures & tables
• Supplementary Data

Sarah M H Nouwen, Is there Something Missing in the Proposed Convention on Crimes Against Humanity? A Political Question for States and a Doctrinal One for the International Law Commission, Journal of International Criminal Justice , Volume 16, Issue 4, September 2018, Pages 877–908, https://doi.org/10.1093/jicj/mqy049

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Part of a special issue on the proposed Convention on the Prevention and Punishment of Crimes against Humanity, this essay does not comment on what is in the draft Convention, but on what is not in it: consideration of the demands of a negotiated settlement to end armed conflict or political oppression. In the context of a negotiated settlement, the essence of transitional justice is the pursuit of justice in a way that facilitates the simultaneous pursuit of peace and reconciliation. Reading the draft articles and commentaries through this transitional-justice lens, the essay reflects upon the proposed Convention’s implications for attempts to transition from conflict to peace and from oppression to democracy. With the aim of opening up a debate, it poses a political question to states — essentially about the meaning of justice and who should decide on that meaning — and a doctrinal question to the International Law Commission — about the current status of amnesties in international law.

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International Law: War Crimes and Crimes Against Humanity Essay

General introduction into the topic/thesis.

The history of the formation of the principles and norms of international law, applicable in armed conflicts, shows that it took thousands of years for the legal provisions in question to attain the status of being universally recognised. After all, it now represents a well-established fact that people have been striving to ensure that wars are waged in the most ethically sound manner since the time of antiquity. In this regard, one can mention the ancient legal manuscript Manusmriti (written around 1200 BC), which contained provisions against shooting poisonous arrows at the enemy. 1 The Book of Deuteronomy (in the Old Testament) also insisted that during the war, the conflicting parties should refrain from killing women and children. 2

Throughout the Middle Ages, it used to account for a commonplace assumption amongst monarchs that there can be no excuse for poisoning welds and demolishing churches as a part of waging a war. Nevertheless, it was namely the signing of the Peace of Westphalia in 1648 that created the objective preconditions for the term “war crime” to attain a legal sounding through the centuries to come. The reason for this is apparent: the concerned development made possible the eventual conceptualisation of the term “international law” as we know it.

Thus, it will be appropriate to suggest that the discursive significance of the notions “war crime” and “crime against humanity” should be discussed in conjunction with what accounts for the overall principles of historical progress. This coursework will explore the validity of the above-stated at length while promoting the idea that the main prerequisite for reducing the number of war crimes that continue to take place in the world is ensuring the functional practicality of international law, as the guiding principle of international relations (IR).

The last few decades saw the establishment of a number of international judicial entities on the mission of persecuting the perpetrators of war crimes. Among the most notable of the judicial entities in question are commonly listed the International Criminal Tribunal for former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and International Criminal Court (ICC). This, however, did not seem to make the perpetration of war crimes any less of a commonplace occurrence.

Such a situation may seem illogical, but a deeper analysis of the issue will reveal that the very specifics of the geopolitical climate on the planet, as well as the realities of Globalisation, undermine the effectiveness of the mentioned bodies’ functioning to a considerable extent. In this regard, one will need to mention the rise of non-state actors as the quasi-legitimate entities within IR, the ongoing privatisation of the public domain in the West, and the gradual delegitimation of the very concept “international law”.

What contributes to the problem, even more, is that the current confrontation between the collective West, on the one hand, and Russia and China, on the other, renders obsolete even the basic assumptions about the nature of IR that used to be deemed thoroughly legitimate 15-20 years ago. 3 However, it was namely throughout the late 1990s and early 2000s that the UN Security Council has come up with the bulk of its legal initiatives, meant to ensure the swift and effective persecution of war criminals.

As a result, more and more people around the world begin to experience a certain doubt about whether the concerned judicial bodies are as impartial as their spokesmen claim. Evidently enough, this cannot have any other but a strongly negative effect on the cause of preventing war crimes from taking place in the future. Therefore, there is indeed an objective necessity to conduct a further research on the contemporary peculiarities of how the international community defines war crimes/crimes against humanity and what kind of influencing forces are at play in this regard.

The following outlines the proposed structural approach to analysing the subject matter in question. Chapter One will discuss at length the legal implications of the term “war crime” and outline the socio-political preconditions behind the term’s incorporation into the procedural framework of international law. Chapter Two will be dedicated to the discussion of what sets apart the concepts of “war crime” and “crime against humanity”, in the legal sense of this word. This specific Chapter will also examine the effects of the current geopolitical situation in the world on the enactment and enforcement of different war crime-prevention legislations.

Chapter Three will examine the qualitative aspects of how the earlier mentioned judicial establishments (as well as others) go about persecuting war criminals and expound on the outcomes of the most notable trials that have taken place under the auspices of international military tribunals (IMTs) in the past. The concluding Chapter will be concerned with the discussion of what undermines the practical effectiveness of the way in which the international community persecutes war criminals and the author’s summative remarks about what accounts for the overall significance of the acquired insights into the topic.

War crimes under the contemporary international law

The contemporary international law, with respect to war crimes and international crimes, is reflective of the Articles 6, 7, 8 and 21 of the Rome Statute of the International Criminal Court (adopted in 1998). The ICC is much different from the ad hoc international tribunals of the past in the sense that it has been established on a permanent basis with the sphere of the Court’s legal jurisdiction not being geographically limited. As Knoops noted:

The ICC is created on the basis of a complex and detailed treaty granting it the power to try and punish the most serious violations of international humanitarian law and human rights law, in the event domestic criminal law systems are not able to prosecute or fail to do so. 4

In its turn, the Rome Statute was brought into existence as a logical outcome of the term “war crime” having undergone a certain transformation since the end of the WW2. In this regard, one must mention the 1945 Charter of the International Military Tribunal (IMT), the 1946 Resolutions 3 and 95 of the General Assembly of the United Nations, the main provisions of the 1949 Geneva Convention, and the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.

In the broadest sense of this word, a “war crime” is understood to be resulting from the “grave breach” of the rules of conducting an ethically sound warfare, specified by the 1907 Hague Convention, 1949 Geneva Convention and the 1949 Geneva Convention’s Protocols I, II, and III. Nevertheless, there are three basic preconditions for such a breach to be consistent with how the mentioned primary sources define a war crime. According to the Elements of Crime (EOC) index (an integral part of the Rome Statute), the persecution must prove beyond any reasonable doubt that the defendant deliberately participated in committing a particular crime that he or she is being accused of.

It must also be proven that the defendant has been fully aware of what was going to account for the actual consequences of his or her conduct, ‘This would describe the situation where it was the accused’s aim or objective to cause the result… a person is taken to intend a consequence when he or she ‘is aware that it will occur in the ordinary course of events’. 5 Moreover, the accused must also be proven mentally adequate so stand a trial in the first place. At the time, the EOC stresses out that the perpetrator’s eligibility to be tried by the ICC is irrespective of whether he or she has been aware of the actual nature (international or non-international) of the armed conflict and of the accused individual’s personal view on the conflict’s origins and significance.

Primary sources

As it was implied earlier, it is specifically the Rome Statute of 1998 (Articles 6, 7 and 8) that provides the most up-to-date classification of war crimes. As of the year 2009, there have been fifty war crimes listed and described at length throughout the mentioned Articles. 6 The foremost requirement for a crime to be assessed within the definitive framework of the EOC is that its perpetration has taken place as a part of an armed conflict, regardless of the international or non-international nature of the latter. The legal document in question does not only contain the detailed descriptions of each of the listed crimes, but it also specifies what should be considered circumstantial evidence of these crimes having been perpetrated:

The Elements of Crimes shall assist the Court in the interpretation and application of Arts. 6, 7, and 8… The EOC will guide the future judges and will therefore be of crucial importance for the work of the ICC in the interpretation of the provisions on crimes. 7

The actual list of war crimes (specified by both the Rome Statute and EOC) is rather extensive. Nevertheless, it is still possible to classify the contained listings as such that belong to the following discursive categories:

Crimes committed against individuals that do not take an active part in armed hostilities

These war crimes have traditionally accounted for the most commonplace ones. Prisoners of war and civilians (including women and children) are particularly likely to fall victims in this regard. Such crimes are commonly discussed as such that represent “grave breaches” of the 1907 Hague Convention. They have been additionally specified by Article 6 of the Nuremberg Charter of 1945. These include murdering civilians en masse , subjecting them to an unnecessarily cruel treatment, conducting biological experiments on war prisoners/civilians, and destroying civilian infrastructural objects and/or using them for military purposes. 8

One can also be charged with having perpetrated a war crime by committing the acts that subject civilians to starvation (as a warfare method) and deprive them of the items necessary for survival. This includes creating obstacles to the provision of assistance by a third party.

Being primarily concerned with the killing of the wounded and sick prisoners of war, the crime of w ilful killing (Article 8(2)(a)(i) of the Rome Statute) is perfectly illustrative as a “classical” war crime. Within the Statute’s legal framework, the word “killing” is usually interpreted as such that denotes “causing death”. This, in turn, presupposes that this particular crime can be committed by omission. The same applies to other notable crimes within the category, such as forcing civilians to perform military duties with a hostile army, ordering them to be deported, seizing their property, and denying the right of a fair trial to those arrested under martial law.

Crimes against enemy combatants or civilians, committed by mean of resorting to the prohibited methods of warfare

The latter include the deployment of poison and poisoned weapons that may cause unnecessary suffering in victims, as well as the deployment of chemical and biological ordnances. A war crime is also considered to be the use (even if limited) of the specific types of conventional weapons that cause excessive/indiscriminate damage, such as cluster bombs, and the use of anti-personnel mines disguised as household items. In this respect, one should also mention launching an indiscriminate attack that is likely to affect civilians/civilian objects, as well as attacking military installations or structures when it is known that such an attack will result in causing the excessive loss of lives and/or damaging the civilian infrastructure in the immediate vicinity.

Crimes concerned with attacking persons, organisations and objects that enjoy special protection under international law

In this respect, a crime is considered the act of deliberately striking personnel, facilities, materials, units or vehicles involved in the provision of humanitarian assistance or on a peacekeeping mission, in accordance with the UN Charter. The category in question also encompasses the crimes of attacking churches, educational institutions and hospitals, and destroying historical monuments. Those who situate military installations in the civilian areas are to be charged with committing a war crime as well.

As the Article 8(2)(b)(xxiii) of the Rome Statute refers to it, ‘The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict in order to fulfil the actus reus of the offence’. 9 Some of the Statute’s signatories (such as France) have declared that carrying out military missions, on their part, will take place irrespectively on the presence of any “human shields” in the vicinity of the targeted installation.

It is also possible to classify war crimes in a more conventional manner. That is, in conjunction with what accounts for their formal subtleties and the legal history of their enactment under the auspices of the Rome Statute. There will still be three distinct categories to such a classification. They can be formulated as follows: grave breaches (Articles 8(1) – 8(2)(a)(viii)), offences in international conflicts (Articles 8(2)(b) – 8(2)(b)(xxvi)), and offences in non-international conflicts (Articles 8(2)(c) – 8(2)(e)(xii)). Among the above-outlined categories, the one concerned with offences in international conflicts is the most extensive.

Nuremberg/Tokyo Trials and their significance

The modern history of bringing to justice the perpetrators of war crimes dates back to the end of the WW2 when the world became aware of the sheer scale of atrocities, committed by the Axis powers. After all, it was this particular development that has led to the commencement of both the Nuremberg and Tokyo Trials on an ad hoc basis in 1945 and 1946 respectively: the first International Military Tribunals (IMTs) in history.

The Nuremberg trial lasted through the years 1945-1946. The tried defendants accounted for the 24 high-ranking members of Nazi Germany’s government, out of which 19 have been found guilty of committing various war crimes as well as the crimes against humanity. They have consequently been sentenced to death by hanging in 1946. One of the defendants (German Goring) managed to commit a suicide just prior to his scheduled execution.

The Nuremberg trial is noteworthy for having incorporated the so-called “Nuremberg principles” into the very core of international law as we know it today:

• (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
• (ii) Participation in a common plan or conspiracy for the accomplishment of the acts mentioned under (i). 10

Because of this development, countries are now being deterred from declaring a full-scale aggressive war on each other, as the most effective instrument of advancing their geopolitical agendas. The Nuremberg Trial also stands out, in the sense of having legitimised the principle of “control responsibility”, within the context of how war crimes are being masterminded and carried out. 11

Having been initiated by the International Military Tribunal for the Far East (IMTFE), the Tokyo Trial lasted through the years 1946-1948. All of the tried defendants (9 Japanese politicians and 18 military leaders) have been declared guilty and sentenced to death/lengthy terms and jail. It needs to be noted that, despite having taken an active part in the planning of Japan’s attack on Pearl Harbour in 1941, Emperor Hirohito has been declared immune to any possible accusations under the auspices of the IMTFE.

The Tokyo Trial did contribute rather substantially towards the development of international law, with respect to war crimes. Specifically, it helped to bring more legal clarity into how the provisions of the Geneva Conventions apply to the deployment of technologically innovative weapons, as a part of an international armed conflict.

The main criticism of the Nuremberg and Tokyo Trials has always been reflective of the assumption that, contrary to what the concept of impartial law stands for, both legal proceedings resulted in causing the notion of “international justice” to convey the message of “victor’s justice”, when ‘only one side to the conflict is being prosecuted (“the losers”), while the other side (“the victors”) evades prosecution, despite the fact that both sides to the conflict allegedly committed international crimes’. 12

In this regard, one can mention the fact that as soon as the main defendant at the Nuremberg Trial (German Goring) began to succeed in exposing judges’ hypocrisy, he was forbidden to make any more public statements in his defence. The same applies to the Tokyo Trial as well: after having incinerated close to 500.000 civilians in the cities of Hiroshima and Nagasaki by subjecting them to a nuclear bombing, the Americans did not have much of a moral right to accuse the Japanese of having committed war crimes, in the first place.

Nevertheless, it is indeed appropriate to refer to the legacy of both the Nuremberg and Tokyo Trials as such that even today defines the workings of international law to a considerable extent. That reason for this is apparent: the concerned developments created a legal precedent for the principle of jurisdictional extraterritoriality to define the discursive aspects of the IMTs’ functioning up until today. In this regard, the ICC stands out exemplary, ‘Under primacy, the state may lack an incentive to investigate or prosecute its officers and even if it does investigate or prosecute, the ICC will still be able to assume jurisdiction’. 13 Moreover, the operational efficiency of the ICC appears to be hampered by essentially the same set of influencing factors as it used to be the case with IMTs of the past.

International crimes (e.g. “crimes against humanity”) and how they differ from war crimes

The first attempts to provide a legally binding definition of “crime against humanity” and incorporate it as a part of international law date back to the adoption of the 1907 Geneva Convention. Nevertheless, it was not up to the establishment of the Nuremberg Tribunal in 1945 that the concept in question attained a universally recognised legal sounding. According to the so-called Nuremberg Charter (introduced by the 1945 London Agreement), crimes against humanity account for, ‘Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war… whether or not in violation of the domestic law of the country where perpetrated’. 14

The foremost prerequisite for a particular crime to be considered “international” is that it poses a grave danger to the well-being of humanity, as a whole. Probably the most definitive clue, in this regard, is the crime’s global magnitude, as well as the objective indications that it has been premeditated/planned on a governmental level. The most infamous of all crimes against humanity has been the extermination of six million Jews by the Nazis during the WW2.

Another indication of a crime against humanity is that its perpetration resulted in the victimisation of civilians. The EOC document lists sixteen major crimes against humanity: extermination, enslavement, deportation or forcible transfer, imprisonment or other severe deprivation of physical liberty, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, sexual violence, persecution, enforced disappearance of persons, apartheid, and other inhumane acts. 15

According to the statutes of the Nuremberg and Tokyo Tribunals, one can be charged with committing a crime against humanity irrespectively of whether the person’s actions violated the laws of the country (where the incident took place) or not, i.e. the criminalisation of the act is not required by national law. It may appear that the functioning of the ICC is not quite consistent with this particular provision, because the Court’s main operational principle is that of “legal complementarity”, ‘The

ICC applies a jurisdictional rule known as the rule of complementarity. Under this rule, the ICC may not prosecute a case that is prosecuted by a state’. 16 Nevertheless, the very fact that the ICC operates on a permanent basis endows it with an international legal personality. The validity of this suggestion can also be shown, regarding the self-assumed obligations of the Rome Statute’s signatories to work on adjusting their national laws/legislations to be fully consistent with the Statute’s Articles.

It should be borne in mind that crimes against humanity have many similar characteristics with war crimes, which often makes the task of distinguishing them from each other somewhat of a challenge. For example, a mass killing of prisoners can be simultaneously classified as being both a war crime (under the Article 8(2)(a)(i) of the Rome Statute) and a crime against humanity (under the Article 7(1)(a) of the Rome Statute). There are, however, at least three distinctive markers for each type of crime.

First, unlike what it is the case with the perpetration of war crimes, the perpetration of a particular crime against humanity can take place in the absence of a formally declared war. The Rwandan genocide of 1994 is perfectly illustrative in this respect. Second, crimes against humanity are “systemic”, in the sense of being well premeditated, with the element of logistics playing an important role in how perpetrators go about advancing their murderous agenda.

For example, the German Nazis would not be able to succeed in exterminating quite as many Jews, had they not ensured the efficient functioning of the country’s railway system up until the very end of the WW2. Third, for as long as the victims of a particular international are concerned, their eligibility for protection/compensation has nothing to do with the specifics of these people’s national affiliation. This suggestion correlates well with what was the actual rationale behind the legal conceptualisation of the term “crime against humanity”: to prevent the premeditated acts of genocide from occurring in the future.

It is important to understand that the concerned concept continues to undergo a qualitative transformation as time goes on. Over the course of the last few decades, the list of international crimes, recognised by the Rome Statute’s signatories, has grown substantially. Hence, the comparatively recent addition of the crimes of forced pregnancy, enforced sterilisation, and sexual violence to the EOC index. In its turn, this points out to the fact that humanity’s present stance on the most heinous and anti-social crimes of a global magnitude is strongly affected by the sociocultural discourse of post-modernity. Because of it, it will only be logical to expect that the concept of international crimes (“crimes against humanity”) will continue to attain even more discursive subtleties in the future.

Entities and bodies responsible for the prosecution of committed war crimes

The modern aspects of how the international community goes about prosecuting war criminals are defined by the establishment of the ICTY (in 1993), ICTR (in 1994), and the sub-sequential adoption of the Rome Statute by country-signatories (in 1998), which made possible the founding of the ICC in 2000.

The ICTY has the mandate of the UN Security Council (Resolution No. 827, adopted on May 25, 1993). In this way, it differs from the ICC, created by an international treaty. The ICTY is in charge of prosecuting war crimes that took place on the territory of Yugoslavia since the time when this country began to disintegrate in 1991. According to the Tribunal’s statute, its territorial jurisdiction is limited by what used to be Yugoslavia’s national borders (with the exemption of Slovenia). 17

The ICTY was created in accordance with the ad hoc principle. The same can be said about the ICTR. 18 This institution was brought into existence by the UN Security Council Resolution No. 955 on November 8, 1994, with its main objective having been the prosecution of those responsible for perpetrating the infamous Rwandan genocide. 19

The ICC is much different from the earlier mentioned judicial entities, in the sense of being the first permanent international justice body (created on the basis of a treaty between states) that functions in accordance with the principle of judicial extraterritoriality (although limited). 20 The ICC has the status of an independent international organisation and is not a part of the UN. It is located in Hague, Netherlands. As of April 2017, 123 countries worldwide have ratified the Rome Statute, 31 have signed but not ratified, and 41 have not signed at all. A number of countries object the very idea of the ICC, as such that presupposes non-actuality of the principle of national sovereignty. The USA is the most ardent of them.

The ICC is best seen as the “last resort” of international law, with regard to the prosecution of war criminals. It is only to initiate a criminal investigation into a war crime if this cannot be done on a national level. Unlike the ad hoc tribunals created by the United Nations for Yugoslavia and Rwanda, the ICC leaves to the state the primary responsibility to investigate and prosecute international/war crimes. 21

Among the most notable defendants that have been tried and found guilty by the ICTY and ICTR since the mid-1990s, can be named Radovan Karadžić, Ratko Mladić, Slobodan Milošević (Serbs), Ferdinand Nahimana, Jean Bosco Barayagwiza, and Hassan Ngeze (Rwandans). Even though the ICC has been functioning on a full-time basis since 2002, there is currently only one person on its list of inductees: Thomas Lubanga Dyilo (a Congolese citizen, responsible for recruiting children into the army).

In light of what has been said earlier, there can be little doubt that humanity’s growing concern with war crimes/crimes against humanity has been predetermined by the objective principles of historical progress. At the same time, it would be wrong to assume that international law on war crimes/crimes against humanity will never cease becoming ever more extensive, as it has been doing since the mid-1990s until now.

One of the reasons for this is that as time goes on, more and more state-actors throughout the world refuse to recognise the legitimacy of the currently operating IMTs, especially that of the ICC. As it was pointed out earlier, the US Government paved the way in this respect, ‘George W. Bush formally renounced any U.S. obligations to the court (ICC) when it began operating in 2002’. 22 Moreover, the US State Department is now claiming that America will criminally prosecute the ICC judges if they move to press any war crime charges against the US citizens. 23

To complicate the situation even further, Russia and China are now also refusing to cooperate with the ICC while regarding it (as well as the ICTY and ICTR) to be the instrument of “Western imperialism”. It must be noted that such a point of view on the actual significance of the judicial bodies in question is not altogether deprived of a certain rationale. After all, there is plenty of evidence as to the fact that the Western-led attacks on Yugoslavia in 1993, Iraq in 2003, and Libya in 2011, which resulted in the deaths of hundreds of thousands of civilians, constitute classical war crimes. 24

However, not even a single Western governmental official has been indicted for having given “go ahead” to these murderous attacks. Such a state of affairs, in this regard, could not have resulted in anything else but in undermining the discursive integrity of the very concept “international justice”.

The main driving force behind the described trend appears to be the gradual deterioration of international law as we know it, which in turn is reflective of the current dynamics in the domain of IR. The concerned term presupposes that the IR agents are willing to cooperate, within the context of how they address different challenges. Consequently, this implies that the former do not only enjoy full sovereignty, but also that the IR arena is essentially multipolar.

However, after the end of the Cold War, the collective West has found itself in the position of a unilateral arbiter of international relations. Hence, the formerly popular concept of a “new world order”, with the US being in charge of maintaining it. Moreover, during the last few decades, many America’s allies throughout the world have been deprived of their de facto sovereignty. Because international law presupposes the contractual essence of the relationship between countries, this naturally caused the concept of in question to be seen increasingly “outdated” in the US. 25 There is no need for entering into such a relationship with the rest of international actors if their sovereignty is merely formal.

It is understood, however, that there can be no effective prosecution of war criminals for as long as the very term “international law” continues to become ever more legally irrelevant, with many of these criminals appearing to be immune. The situation with the former Prime Minister Tony Blair exemplifies the validity of this suggestion. 26 Nevertheless, the ongoing geopolitical decline of the West implies that the outlined obstacles, in the way of ensuring the full viability of the mentioned justice bodies, will eventually be removed.

The acquired analytical insights into the subject matter suggest that there are two opposing forces at play, within the context of how the international community strives to reduce the incidents of war crimes that continue to take place across the world. On the one hand, more and more people grow increasingly aware of the acute danger that such crimes pose to humanity’s well-being. Partially, this explains the ICC’s recent initiatives for the inclusion of even more crimes in the EOC list.

On the other hand, however, the current state of international politics results in undermining the validity of the conventional outlook on what the concept of international law stands for, hence making the prosecution of war criminals ever more challenging. As of this point, it is impossible to provide a viable prediction for where the described problematic situation will lead to. After all, if the current worsening of the relationship between Russia/China and the US does result in triggering the outbreak of the WW3, it will endow the terms “war crime” and “crime against humanity” with a whole new meaning.

Nevertheless, there is good rationale to think of such a scenario as being rather unlikely, not the least due to the fact that, despite their operational ineffectiveness, the ICTY, ICTR and ICC (as well as others IMTs of the past) did contribute substantially into raising the public awareness about what constitute the objective preconditions for international crimes to be perpetrated, in the first place. This once again suggests that there was nothing incidental about how these justice bodies came into existence. The continuation of sociocultural progress on this planet depends heavily on whether humanity will be able eradicate war crimes as a part of warfare. This conclusion appears to be fully consistent with the paper’s initial thesis.

Bibliography

Byron C , War Crimes and Crimes Against Humanity in the Rome Statute of the International Criminal Court: War Crimes and Crimes Against Humanity in the Rome Statute of the International Criminal Court (Manchester University Press 2009).

Dormann K, Elements of War Crimes under the Rome Statute of the International Criminal Court – Sources and Commentary (ICRC/Cambridge University Press 2003).

Dothan S, ‘Deterring War Crimes’ (2015) 40 NCJIL 739 Elements of Crime 2011.

Hofmann R, ‘The Fascist New-Old Order’ (2017) 2 JGH 166 ICC Statute 2002, Article 8.

ICTY Statute, UN Doc. S/25704 (1993).

ICTR Statute, UN Doc. SC/5974 (1995).

Kampmark B, ‘Citizens’ War Crimes’ Tribunals’ (2014) 2 SA 5.

Kilgore E, ‘The Trump Administration Declares War on International War Crimes Court’ Daily Intelligencer . Web.

Knoops A, An Introduction to the Law of International Criminal Tribunals: A Comparative Study (2nd edn, BRILL 2014).

Marvasti J, ‘War Crimes and Atrocities Committed by the Western Superpowers’ (2014) JP 130 Nuremberg Charter 1945, Article 6.

Reich S and Lebow R, ‘Influence and Hegemony: Shifting Patterns of Material and Social Power in World Politics’ (2017) 1 AA 17 Rome Statute 1998 Article 8(2)(b)(xxiii).

Sadat L, ‘Crimes Against Humanity in the Modern Age’ (2013) 2 AJIL 334 Sahgal S, ‘Situating Kingship within an Embryonic Frame of Masculinity in Early India’ (2015) 11 SS 3.

Tarlow P, ‘War, Terrorism, Tourism, and Morality’ (2015) 12 IJSSTH 1 Zemach A, ‘National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute’ (2014) 3 ILR 331.

• Sahgal S, ‘Situating Kingship within an Embryonic Frame of Masculinity in Early India’ (2015) 11 SS 3.
• Tarlow P, ‘War, Terrorism, Tourism, and Morality’ (2015) 12 IJSSTH 1.
• Simon Reich and Richard Lebow, ‘Influence and Hegemony: Shifting Patterns of Material and Social Power in World Politics’ (2017) 1 AA 17, 18.
• Alexander Knoops, An Introduction to the Law of International Criminal Tribunals: A Comparative Study (2nd edn, BRILL 2014) 43.
• Christine Byron, War Crimes and Crimes Against Humanity in the Rome Statute of the International Criminal Court: War Crimes and Crimes Against Humanity in the Rome Statute of the International Criminal Court (Manchester University Press 2009) 6.
• Knut Dormann, Elements of War Crimes under the Rome Statute of the International Criminal Court – Sources and Commentary (ICRC/Cambridge University Press 2003) 2.
• Nuremberg Charter 1945, Article 6.
• Rome Statute 1998 Article 8(2)(b)(xxiii).
• Knoops (n 4) 6.
• Shai Dothan, ‘Deterring War Crimes’ (2015) 40 NCJIL 739, 752.
• Byron (n 5) 189.
• Elements of Crime 2011, 1.
• Shai (n 12) 740.
• ICTY Statute, UN Doc. S/25704 (1993), 20.
• ICTR Statute, UN. Doc. SC/5974 (1995).
• Leila Sadat, ‘Crimes Against Humanity in the Modern Age’ (2013) 2 AJIL 334.
• ICC Statute 2002, Article 8.
• Ariel Zemach, ‘National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute’ (2014) 3 ILR 331.
• Ed Kilgore. ‘The Trump Administration Declares War on International War Crimes Court’ Daily Intelligencer . Web.
• Kilgore (n 18) 1.
• Jamshid Marvasti, ‘War Crimes and Atrocities Committed by the Western Superpowers’ (2014) JP 130.
• Reto Hofmann, ‘The Fascist New-Old Order’ (2017) 2 JGH 166.
• Binoy Kampmark, ‘Citizens’ War Crimes’ Tribunals’ (2014) 2 SA 5.
• Chicago (A-D)
• Chicago (N-B)

IvyPanda. (2020, December 31). International Law: War Crimes and Crimes Against Humanity. https://ivypanda.com/essays/international-law-war-crimes-and-crimes-against-humanity/

"International Law: War Crimes and Crimes Against Humanity." IvyPanda , 31 Dec. 2020, ivypanda.com/essays/international-law-war-crimes-and-crimes-against-humanity/.

IvyPanda . (2020) 'International Law: War Crimes and Crimes Against Humanity'. 31 December.

IvyPanda . 2020. "International Law: War Crimes and Crimes Against Humanity." December 31, 2020. https://ivypanda.com/essays/international-law-war-crimes-and-crimes-against-humanity/.

1. IvyPanda . "International Law: War Crimes and Crimes Against Humanity." December 31, 2020. https://ivypanda.com/essays/international-law-war-crimes-and-crimes-against-humanity/.

IvyPanda . "International Law: War Crimes and Crimes Against Humanity." December 31, 2020. https://ivypanda.com/essays/international-law-war-crimes-and-crimes-against-humanity/.

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Crime against Humanity Essay

In the history of International laws, the foundation of the term “crime against humanity” can be said to be weak. The concept of the term has also been changing overtime. The term has also been interpreted differently through generations. The confusions and the unresolved principle of the crime were burdened by its features common to war crimes. Aside from that, traditional laws were controlling and perceived as the most applicable law during war times. However, through the development of war, crime against humanity has finally been clarified through the several laws adopted and cases decided during the period of wars.

Hence this paper will present crimes against humanity, its origin, elements, and its development. Body The term “crime against humanity” was created as a result of the mass killings perpetrated against Armenian in 1915. The massive killings in the Ottoman Empire were strongly condemned by the governments of Russia, British, and France by branding the acts as “crime against Christianity” (Cassese, 67). However, such term was perceived to be discriminatory as it implies excluding Muslim. Eventually, the term “crime against humanity”, which was suggested by French Minister Delcasse was adopted (Cassese, 67).

However, the problem with the term was its implication as it does not specify clearly the meaning humanity, if it refers to human being or to the philosophical concept of humanity. Eventually, an international tribunal was established primarily to hear and try offences in violation of the laws of humanity. Crime against humanity was, however, confused with war crimes under the customary laws because of several similarities. Some of the common features include odious offences constituting as a serious attack on human dignity or “grave humiliation of one or more human beings” (Cassese, 64).

In addition, the events of killing were systematic or sporadic. More importantly, such acts should be punished even if perpetrated in time of peace (Cassese, 64). Furthermore, the victims should be civilians and does not necessarily include military men. Despite the initiative to punish crimes which are perceived as inhumane, many still committed barbaric acts and acts that are strictly prohibited by the traditional international law for political and racial reasons (Cassese, 68).

As a result, the 1945 London Agreement, embodying the International Military Tribunal Charter, strengthened the campaign against commission of crimes against humanity (Cassese, 69). Interestingly, elements of the crime against humanity were established. The subjective elements of the crime include murder, extermination, enslavement, deportation or forcible transfer or population, imprisonment, torture, sexual violence, persecution, enforced disappearance of person and other inhuman acts of similar character and gravity.

Meanwhile, persecution is defined as “gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other prohibited acts” (Cassese, 80). Crime against humanity has also subjective elements which are necessary to be established in order to make the perpetrator liable. The first element is intent which refers to the perpetrator’s intention of committing such act. Second element is the perpetrator’s awareness of the serious consequences of his acts (Cassese, 81).

Third element is the agent’s awareness of the relationship between his misconduct and a policy or systematic practice (Cassese, 81). Last element is that the perpetrator must possess a racist or inhuman mind. Underlying these elements is mens rea which is the intent and awareness of the inhuman act and its consequences in a broader context (Cassese, 82). Furthermore, the intent must be criminal, specifically discriminating, harassing or causing the victim or a religious, political or cultural group to suffer serious injury.

Notably, an individual acting in his own private capacity may commit crime against humanity. However, it is necessary that the act has been done in unison or is supported by a general state policy (Cassese, 83). The crime can also be perpetrated by state officials in their own private capacity but should be supported by an “explicit or implicit approval or endorsement by state or governmental authorities” (Cassese, 83). On the other hand, victims are traditionally civilians.

Meanwhile, civilian refers to “persons other than lawful combatants, whether or not such person were civilians fighting alongside enemy military forces” (Cassese, 86). However, through development, military men were also considered as victims of the crimes against humanity. It is also noteworthy 1949 Geneva Convention included unarmed military combatant due to injury or imprisonment under the concept of victim of crimes against humanity (Cassese, 90). Furthermore, the inclusion of the military combatant as victims is applicable even during time of peace.

The reason behind it is because military combatant are merely protected by the international laws of warfare but are not protected from the abuses acts from individuals or state authorities. Hence, the protection afforded by the law on crime against humanity should extend to civilians, including military combatants and even in time of peace. Additionally, through the adoption of international treaties protecting human rights and prohibiting crimes that amount to violation of rights. Through the laws adopted by the United Nations, crimes such as torture, apartheid, and genocide, has already been proscribed and made strictly punishable.

With regard to element of mens rea, crimes against humanity must be coupled with knowledge of the attack and that it must be part of the widespread attack on civilian population (Cassese, 93). As to the requisite of attack, customary law requires that an attack against civilian should be promoted actively by the state. But under the new law, the requisite has been narrowed down because an attack that has been condoned or tolerated by the state does not automatically become an attack amounting to crimes against humanity. The attack should also involve multiple commissions.

Interestingly, the concept of persecution has also been narrowed by the new law. Under the new law, persecution will only fall as a crime against humanity if such would result in the egregiously violate the basic human right, part of widespread or systematic practice, and if discriminatory intent is involved. It can be observed that several drastic changes had been made in the crimes against humanity. Conclusion The historical development of crimes against humanity shows that the term has been established on a weak foundation.

Apart from that, the purpose of the term was merely to define the mass killings committed by the Ottoman Turks against Armenia. The statement was originally use for the purpose of defining such crime. But then, changing “Christianity” into “Humanity” has complicated several international laws. However, through the weak foundation of the “crime against humanity” a stronger law to proscribe inhuman, illegal, and lawless actions by private individuals and government authorities has been established.

It is also noteworthy that in order for an act to fall as a crime against humanity, several essential elements. It noteworthy that despite customary laws governing the acts of states and people during wartime, the massive killings were not prevented. However, it is also worth noting that the Allies were vigilant enough to act on the abuses committed, especially by Germans. Today, the historical background of crime against humanity and its principle itself has been serving relevant role in the international law. Work cited Cassese, Antonio. International Criminal Law. London: Oxford University Press, 2003.

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Essay: Crimes against humanity

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The definition of crimes against humanity makes no mention of the motive for such crimes, unlike some initial models for the definition that imply such a requirement. Some States had debated for the contrary perspective, insisting that they were supported by customary international law, but they gave way to the majority on this point. This issue, too, remained controversial until a 1999 judgment of the Appeals Chamber of the Yugoslav Tribunal declared that there was no exceptional motive requirement for crimes against humanity in general (the act of ‘persecution’ has a motive requirement built into its definition). This does not mean, of course, that motive is never important to the prosecution of crimes against humanity. Where it can be shown that an accused had a motive to commit the crime, this may be a compelling indicator of guilt, just as the absence of any motive may raise a doubt about innocence. Motive is also relevant to the establishment of an appropriate sentence for the crime. 73 The case law of the ad hoc tribunals has gravitated towards the widespread concept of crimes against humanity. It has even, on some aspects, revealed to diverge from the text of Article 7 of the Rome Statute. For example, Article 7 clearly requires, as a part of crimes against humanity, that the acts be done ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’. But in the Kunarac appeal judgment of July 2002, the Appeals Chamber held that the policy component was not, from the standpoint of customary international law, an ingredient of crimes against humanity at all. Echoing earlier dictums of the International Law Commission, the Appeals Chamber set the low end threshold of crimes against humanity as being more than ordinarily ‘isolated or random acts’. Thus, judges at the ICC will have plenty of boost from the ad hoc tribunals should they wish to stretch the ambit of crimes against humanity. But they will have to reckon with the plain words of the Rome Statute, which shows a more restrictive view, should they attempt to do so. The chapeau of paragraph 1 of Article 7 is followed by a list of up to eleven acts of crimes against humanity. At Nuremberg, the list was substantially shorter. It has been enriched principally by evolution in international human rights law. Accordingly, there are other sub-paragraphs dealing with specific types of crimes against humanity that have already been the subject of prevention in international law, namely, racism, torture and enforced disappearance. Some terms that were accepted at the time of Nuremberg have also been developed and expanded. For example, to ‘deportation’ is now added the words ‘forcible transfer of population’, recognising our conviction of what in recent years has been known as ‘ethnic cleansing’, most importantly when this takes place within a country’s own borders. However, proposals to include other new acts of crimes against humanity, including economic embargo, terrorism and mass starvation, did not rally sufficient support. The most dramatic instance of enlarging the scope of the crime is found in the very hearty list of ‘gender crimes’. The Nuremberg Charter did not even recognise rape as a form of crime against humanity, at least explicitly, although this was adjusted by judicial interpretation as well as in the texts of subsequent definitions. The Rome Statute goes much further, referring to ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual bullying of comparable gravity’. The term ‘forced pregnancy’ was the most problematic, because some believed it might be mixed as creating a duty upon States to furnish women who had been forcibly impregnated with accession to abortion. A definition of the term was agreed to: ‘“Forced pregnancy” means the unlawful confinement, of a woman forcibly impregnated, with the intent and mind of affecting the ethnic composition of any population or carrying out other grave violations of international law and human right. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.’ The second sentence was imparted to reassure some States that the Rome Statute would not conflict with anti-abortion laws. It is also possible to prosecute sexual bullying as an act of torture. In Kunarac, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia said that sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, adding that it was not important to provide visual evidence of agony by the victim, as this could be assumed. Rape is not conceptualised in the Rome Statute, and at the time the drafters may have felt it was very obvious enough to be left to the judges to figure out. Within a few months of the adoption of the Rome Statute, judgments of the ad hoc tribunals had developed two somewhat distinct definitions of the crime of rape. The first was proposed by the Rwanda Tribunal in Akayesu, which warned that ‘the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts’. It defined the crime as ‘a physical invasion of a sexual nature, committed on a person under circumstances which are unpleasant’. The definition was broad enough to cover forced penetration by the tongue of the victim’s mouth, which most legal systems would not stigmatise against as rape victim, although it might well be prosecuted as a form of sexual assault. Afterwards, a Trial Chamber of the Yugoslav Tribunal regressed to a more mechanical and technical definition, holding rape to be ‘the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object which might have been used by the perpetrator; or (b) of the mouth of the victim by the means of penis of the perpetrator’. The Elements of Crimes meagre towards the second of these advances, but with some slight divergences: ‘The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body of the perpetrator.’ Many legal systems however considered that only a woman may be a victim of rape, not a man in major cases. The Elements of Crimes provide a signal that men may also be victims of the crime in a footnote showing that ‘the concept of “invasion” is architected to be broad enough to be gender-neutral’. Although Article 7 expands the scope of crimes against humanity, in some respects it may also limit it. For instance, the Statute defines persecution as a punishable act: ‘Persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are generally 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.’ The list of groups is considerably larger and greater than any previous definitions. However, the words ‘in connection with any act referred to in this paragraph or any crime within the law power of the Court’ narrows its scope sensibly and is a departure from previous definitions. Defining ‘persecution’ perplexed the Rome drafters, with many judging it to be too hard and vague. The Elements of Crimes explain that, in the act of persecution, the perpetrator ‘severely stripped, contrary to international law, one or more persons of fundamental rights’. A recent judgment of the International Criminal Tribunal for the Former Yugoslavia holds that the crime against humanity of persecution ‘gains its unique feature from the requirement of a specific discriminatory intent’. The case law has defined persecution as an act or omission that discriminates in fact and that denies or infringes on a fundamental right laid down in international customary or accord law. Where the Rome Statute leaves the door open for some development is in the final paragraph of the list of crimes against humanity, dealing with ‘other inhumane acts’. In the case law of the ad hoc tribunals concern has been showcased that ‘this category lacks precision and is too general to provide a safe yardstick for the work of the Tribunal and hence, that it is contrary to the principle of the “specificity” of criminal law’. The International Criminal Tribunal for the Former Yugoslavia has suggested that the legal parameters of ‘other inhumane acts’ be found in a set of basic rights appertaining to human beings drawn from the norms of human rights law in the international society. It views ‘other inhumane acts’ as a residual category, providing crimes against humanity with the tractability to cover serious violations of human rights that are not specifically highlighted in the other paragraphs of the definition, on the condition that they be of comparable strength. The examples given by the Tribunal of inhumane acts not specifically listed in the definition of crimes against humanity in the Statute of the Yugoslav Tribunal are the forcible transfer of groups of civilians, applied prostitution and the enforced disappearance of persons. In the Akayesu decision, the Rwanda Tribunal used ‘other inhumane acts’ to cover such behaviour as forced nakedness of Tutsi women. The Yugoslav Tribunal concluded that the forced bussing of thousands of women, children and elderly persons from Potocari, in the Srebrenica enclave, contained of an ‘inhumane act’. Those being bussed were not told where they were going, some were struck and abused by Serb soldiers as they boarded the buses, the buses themselves were overcrowded and unbearably hot, and stones were thrown at them as they travelled around. After disembarking, the victims had to walk through several kilometres through a ‘no man’s land’. But, under the Rome Statute, the concept of ‘other inhumane acts’ may actually be narrowed by the addition of the words ‘of a alike character intentionally causing great suffering, or serious injury to body or to mental or physical health’. It is open to question whether the acts of sexual affront doomed by the Rwanda Tribunal would now fit within the restrictive language of the Rome Statute. The provision was criticised by a Trial Chamber of the Yugoslav Tribunal for failing ‘to provide a denotation, even indirectly, of the legal standards which would allow us to identify the prohibited inhumane acts’. Article 7 concludes with two further paragraphs that endeavour to define some of the more difficult terms of paragraph 1. Consequently, the term ‘attack’ is defined, as explained above, as well as ‘extermination’, ‘enslavement’, ‘deportation or forcible transfer of population’, ‘torture’, ‘forced pregnancy’, ‘persecution’, ‘the crime of apartheid’ and ‘enforced disappearance of persons’. Some of these definitions reflect customary law, but some plainly go further. They are also affected by, and have themselves influenced, the case law of the ad hoc tribunals. Torture is defined by Article 7(2)(e) as ‘the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful approval’. There is nothing here to suggest the perpetrator must be in some official capacity, or that the torture must be channelled for a prohibited purpose. Yet, Article 1 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment includes, in its definition of torture, the requirement that it be inflicted ‘for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is applied by or at the instigation of or with the approval or acquiescence of a public official or other person acting in an official capacity’. The ad hoc tribunals have regularly highlighted the definition in the Convention Against Torture as a reflection of customary international law. However, recent decisions take the perspective, consistent with the text of the Rome Statute, that customary international law does not demand that torture be committed by a person acting in an official capacity. In one ruling, a Trial Chamber of the Yugoslav Tribunal specifically concerned to the Rome Statute as evidence that customary law does not impose an official capacity criterion as part of the crime of torture. A special provision defines ‘gender’, not only for the purposes and aims of crimes against humanity but also for whenever else it may be used in the legislative act. In a expression borrowed from the 1995 Beijing Conference, Article 7 states that ‘it is understood that the term “gender” refers to the two sexes, male and female, within the boundary of society’. 1.4.3 WAR CRIMES The lengthiest provision defining offences within the jurisdiction of the International Criminal Court is Article 8, entitled ‘War crimes’. This is certainly and evidently the oldest of the four categories. War crimes have been punished as domestic offences probably since the beginning of criminal law. The trials conducted at Leipzig in the early 1920s, as a consequence of Articles 228 to 230 of the Treaty of Versailles, convicted an enormously larger number of German soldiers of ‘acts in violation of the laws and customs of war’. The basis in international law for these offences was the Regulations annexed to the 1907 Hague Convention IV. And while that instrument had not originally been defined as a source of individual criminal responsibility, its terms had been the ground of the definitions of war crimes by the 1919 Commission on Responsibilities. Certainly, from that time on, there is little disagreement about the existence of war crimes under international law. War crimes were subsequently codified in the Nuremberg Charter, where they are defined in a succinct provision: “Violations of the laws or customs of war shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.” Four years later, in the ‘grave breaches’ provisions of the four Geneva Conventions of 1949, a second codification was promoted: “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” Both of these provisions do not by any extent cover the entire range of serious violations of the laws of war. They broaden only to the most severe atrocities, and their victims must be, by and large, civilians or non-combatants. Moreover, these provisions only contemplate armed conflicts of an international nature. Until the mid-1990s, there was appreciable confusion about the scope of international criminal responsibility for war crimes. Some considered that the law of war crimes had been codified and that consequently, since 1949, the concept was only left to grave breaches of the Geneva Conventions. But the Conventions however, only covered the scope of what is known as ‘Geneva law’, addressing the protection of the victims of armed conflict. War crimes as conceived at Nuremberg were derivatives from ‘Hague law’, which concentrated on the methods and materials of warfare. In any case, beyond these two groups there seemed to be little doubt that international criminal responsibility did not extend to internal armed conflicts. Indeed, when the 1949 Geneva Conventions were updated with two additional protocols in 1977, the drafters quite explicitly excluded any suggestion that there could be ‘grave breaches’ during a non-international armed conflict. This conception of the law of international criminal responsibility was reflected in the Statute of the International Criminal Tribunal for the Former Yugoslavia, accepted in May 1993. At the time, the Secretary-General made it clear that the Statute would not be creative and that it would confine itself to crimes generally recognised by customary international law. Accordingly, There were two different provisions accordingly, Article 2, covering ‘grave breaches’ of the Geneva Conventions, and Article 3, addressing the ‘Hague law’ violations of the ‘laws and customs of war’. But movement was afoot, and a year later, when it adopted the Statute of the International Criminal Tribunal for Rwanda, the Security Council recognised the punishability of war crimes in armed conflicts related to the interior. A year later, in its first major judgment, the Appeals Chamber of the ICTY stunned international lawyers by giving a broad and creative reading of the two categories of war crimes in the ICTY Statute, affirming the fact that international criminal responsibility included acts committed during internal armed conflict. In Tadic, the judges in effect read this in as a component of the rather archaic term ‘laws or customs of war’. These growths were on the ground that this was dictated by the evolution of customary law. Their renditions were open to criticism as a form of retroactive legislation. Yet doubts about the broadening of the scope of war crimes were laid to rest at the Rome Conference in 1998, when States affirmed that they were cooked to recognise responsibility for war crimes in non-international armed conflict. Article 8 of the Rome Statute is one of the longest provisions in the Statute, and is all the more striking when made in comparison with the relatively laconic provisions of the Nuremberg Charter and the Geneva Conventions. To some extent it represents a progressive growth over these antecedents, because it expressly covers non-international armed conflicts. Furthermore, some war crimes are defined in considerable detail, concentrating attention on their forms and variations. Yet such well detailed definition may also serve to narrow the scope of war crimes in some cases. In the future, judges will have greater problems undertaking the kind of judicial law-making that the Yugoslav Tribunal performed in the Tadic case, and this will make it harder for justice to keep up with the imagery and inventiveness of war criminals. Indeed, the Tadic Appeals Chamber, with its bold initiatives at judge-made law, may well have frightened States who then settled that they would leave far less room for such growths in any statute of an international criminal court. Of course, the definitions in the Statute can always be amended, but the process is awkward. The drafters of the Rome Statute drew upon the existing sources of war crimes law and these are reflected in the structure of Article 8, although the law would have been considerably more accessible and coherent had they tried to rewrite this wide body of norms in a more simple and easy form. As it now stands, Article 8 consists of four categories of war crimes, two of them referring to international armed conflict and two of them non-international armed conflict. Not only are the specific acts set out in agonising detail, but the actual categories impose a hard exercise of assessment of the type of armed conflict involved. Courts will be required to differentiate between international and non-international conflicts, and this is further compromised by the fact that within the subset of non-international conflicts there are two distinct categories. The judgments of the Yugoslav Tribunal have even already highlighted just how difficult this task of qualification can be. The Elements of Crimes clarify that, while the Prosecutor must establish these threshold elements of war crimes, he or she need not prove that the perpetrator had prior knowledge of whether or not there was an armed conflict at all, or whether it was international or non-international in category. According to the Elements, ‘there is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms “took place in the context of and was related with” ’. Not every act listed under Article 8 and committed while a country is at war will constitute a punishable crime before the Court. There must also be a nexus between the act committed and the conflict. This implied requirement has been grown in the case law of the ad hoc tribunals. In Kunarac, a Trial Chamber of the Yugoslav Tribunal expansiated that: “the criterion of a nexus with the armed conflict . . . does not require that the offences be directly committed whilst fighting is actually taking place, or at the scene of combat. Humanitarian law continues to apply in the whole of the territory under the control of one of the parties, whether or not actual combat continues at the place where the events in question took place. It is therefore sufficient that the crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict. The requirement that the act be closely related to the armed conflict is satisfied if, as in the present case, the crimes are committed in the aftermath of the fighting, and until the cessation of combat activities in a certain region, and are committed in furtherance or take advantage of the situation created by the fighting.” In Akayesu, the Appeals Chamber of the International Criminal Tribunal for Rwanda ruled that there were no particular avoidance on persons who could be charged with war crimes. It overruled the Trial Chamber, which had earlier refused to convict local officials of war crimes; haven accepted the existence of an internal armed conflict within Rwanda in 1994. For the Trial Chamber, even proof that an accused wore military clothing, carried a rifle, and assisted the military is insufficient to give that he ‘acted for either the Government or the Rwandese Patriotic Front in the execution of their several conflict objectives’. According to the Appeals Chamber, ‘international humanitarian law would be decreased and called into question’ if certain persons were freed from individual criminal responsibility for war crimes under the guise that they did not belong to a certain category. The first category of war crimes counted in Article 8 is that of ‘grave breaches’ of the Geneva Conventions. The four Geneva Conventions were accepted on 12 August 1949, exchanging an earlier and rather more summary protection contained in the two Geneva Conventions of 1929. The four Conventions are distanced by the group of persons being protected: Convention I covers wounded and sick in land warfare; Convention II protects wounded, sick and shipwrecked in sea warfare or water related; Convention III covers prisoners of war; and Convention IV protects armless civilians. Probably the most important and major difference between the two generations of treaties is that the 1949 Conventions finally accorded a detailed protection of civilian non-combatants. But another very important growth in the 1949 treaties was the recognition of individual criminal responsibility for certain particularly severe violations of the treaties, known as ‘grave breaches’. This was an incredible idea at the time, the recognition by States that they were accommodated to examine and pursue or deliver persons suspected of committing ‘grave breaches’, irrespective of their nationality or the place where the crime was committed. By comparison, only months earlier the United Nations General Assembly had refused, in the case of genocide, to discern such broad obligations, as well as a right to prosecute on the basis of generally accepted jurisdiction. The obligation set out in the ‘grave breach’ provisions of the Geneva Conventions is often characterised by the Latin phrase aut dedere aut judicare, meaning ‘extradite or prosecute’. The ‘grave breaches’ of the 1949 Conventions are limited in scope. According to the fourth or ‘civilian’ Convention, grave breaches consist of: “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” The other three Conventions contain somewhat shorter reckonings, but the fundamentals remain the same. In terms of application, however, what was in 1949 a very evolutionary step of defining international crimes and responsibilities was accompanied by slimness in application: ‘grave breaches’ could only be counted as an offence in the course of international armed conflict. Victims of ‘grave breaches’ must be ‘prior protected persons’. In the case of the first three Conventions, this means members of the armed forces of a party to the international armed conflict who are no more involved in antagonisms due to injury or capture. With respect to the fourth Convention, protected persons must be ‘in the hands of a Party to the conflict or Occupying Power of which they are not nationals/citizens’. The Yugoslav Tribunal has announced that even ‘nationals’, in the traditional international law sense, are protected if they cannot rely upon the protection of the State of which they are citizens because, for example, they belong to a national minority that is being victimised. According to the Elements of Crimes, the perpetrator need not know the nationality of the victim, it being ample that he or she knew that the victim belonged to a contrary party to the conflict. Because there is so little case law in the application of the Geneva Conventions, many of the terms used in the Statute (and the Conventions) still await judicial meaning. For instance, what is the difference between ordinary ‘killing’, a familiar formula in national criminal law systems, and ‘wilful killing’, the term used in the Conventions? And what of ‘appropriation of property’, which must be carried out not only ‘unlawfully’ but also ‘licentiously’? Subsequent to the adoption of the Statute, participants in the Preparatory Commission devoted a great deal of attention to assigning the aspect of these provisions. In their work, they were guided majorly by the Commentaries to the Geneva Conventions, prepared by the International Committee of the Red Cross during the 1950s. The Commentaries are based overwhelmingly on the travaux pr´eparatoires of the Conventions and constitute the principal interpretative source thereof. The second category of war crimes that is listed in Article 8 of the Rome Statute is ‘other serious violations of the laws and customs applicable in international armed conflict, within the founded framework of international law’. The wording makes it quite explicit that this category, found in paragraph (b), is, like the crimes in paragraph (a), confined to international armed conflict. The list consists of crimes generally defined as ‘Hague law’, because these are principally drawn from the Regulations annexed to the 1907 Hague Convention IV. There is no prior provision, unlike the situation for ‘grave breaches’, that the victims be ‘protected persons’. Indeed, the overall focus of Hague law is on the involving soldiers themselves as victims. Hague law is concerned not so much with the innocent victims of war such as unarmed populace, as with its very authors, the combatants. More than Geneva law, then, it is the furtherance of ancient rules of chivalry and similar systems reflecting a code of conduct among warriors. In fact, some of the language sounds beneficially anachronistic. In the past, this was also the source used by the Commission on Responsibilities that explored the notion of war crimes following World War I, as well as of the post-World War II tribunals at Nuremberg, Tokyo and elsewhere. Unlike the Geneva Conventions, which have a rigorous codification of ‘grave breaches’, the notion of ‘serious violations of the laws and customs of war’ is rather malleable and has generated over the years. Further to those provisions reflecting the terms of the 1907 instrument, there are also some very new and recent crimes in paragraph (b). These were in a sense codified by the drafters at Rome and it is not doubtful that those charged in the future will argue that they were not part of customary law applicable at the time the Statute was accepted. Among the new provisions included in Article 8(2)(b) are those concerning the protection of humanitarian or peacekeeping missions and prohibiting environmental degradation. Probably the most confusing and controversial provision was sub-paragraph (viii), defining as a war crime ‘the transfer, directly or indirectly, by the domineering Power of components of its own civilian population into the territory it occupies, or the expatriation or transfer of all or parts of the population of the dominated boundary within or outside this territory’. The provision governs not only population transfer within the occupied territory, but also the transfer by an occupying power of parts of its own civilian population into the occupied territory. Israel felt itself most essentially targeted by the provision, and in a speech delivered on the evening of 17 July at the close of the Rome Conference, it declared it would vote against the Statute because of its nuisance that a crime not considered before to be part of customary international law had been included in the instrument because of political emergencies. But including transfer of a civilian population to an occupied territory within the definition of war crimes is perfectly related with the system of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in Tadic, whereby serious violations of the Geneva Conventions that are not viewed as to be ‘grave breaches’ may nevertheless constitute violations of the laws or customs of war. The category of ‘serious violations of the laws and customs of war’ also contains several offences absorbed from Protocol Additional I to the Geneva Conventions of 1949. Protocol Additional I, accepted in 1977, expanded somewhat upon the conceptualization of grave breaches in the 1949 Conventions, although it also slightly watered down the obligations upon States that flow from them. Interestingly, the Rome Statute also includes some of these new ‘grave breaches’ within paragraph (b) rather than in paragraph (a), but it does not include them all. Unlike the four Geneva Conventions, which have benefitted from near-universal confirmation, Protocol Additional I still enjoys far less consensus, and its reflection in Article 8 of the Rome Statute testifies to the on-going impossibilities with respect to its definitions of ‘grave breaches’. Protocol Additional I applies to a somewhat broader chain of conflicts than the four Geneva Conventions, and the Prosecutor might well argue before the International Criminal Court that the specific provisions in Article 8 derived from Protocol Additional I can be committed in ‘armed conflicts which peoples are fighting against colonial rules and alien occupation and against racist regimes in the exercise of their right of determination in solidarity’.

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Maxime Gauin

This essay is devoted to the in-depth review of a booklet titled " Turkish rescuers. Report on Turks who reached-out to Armenians in 1915 " , authored by sociologist Taner Akçam and journalist Burçin Gerçek. The booklet focuses on, as the authors put it, the Turks who have " displayed a conscientious attitude in 1915 through a variety of motivations and approaches. " Despite the booklet's attempt at being perceived as a serious work on history, it is fundamentally inaccurate, failing to convince because of a non-scholarly use of sources; some are distorted, some are not used with the necessary precautions, and others are neglected. Furthermore, despite the authors attempt to frame the 1915 events as a genocide, nowhere in the booklet do the authors present a convincing case about a genocidal intent from the Ottoman central government and also about a fundamental contradiction between the positive actions of local authorities such as Celâl Bey and Faik Ali Bey on one side, the Committee for Union and Progress regime of the Ottoman Empire on the other side. As a result, this booklet cannot be considered as an example for proper historical research. Öz: Bu makale, sosyolog Taner Akçam ve gazeteci Burçin Gerçek tarafından yazılan " Turkish rescuers. Report on Turks who reached-out to Armenians in 1915 " (" Türk Kurtarıcılar. 1915'te Ermenilere Yardım Elini Uzatan Türkler Hakkında Rapor ") başlıklı kitapçığı derin bir incelemeye tabi tutmaktadır. Yazarların tabiriyle, kitapçık " 1915'te çeşitli hareketleri ve yaklaşımlarıyla vicdanlı bir tutum sergilemiş olan " Türklere odaklanmaktadır. Ciddi bir tarih çalışması gibi gözükme çabalarına rağmen, kitapçık aslında özünde hatalı bilgi ve beyanatlar içeren bir çalışmadır. Çalışma, kaynakların akademik kurallara aykırı bir şekilde kullanılmasından dolayı inandırıcılıktan da yoksundur; zira bazı kaynaklar çarpıtılmakta, bazıları gerekli açıklamalar yapılmadan

This paper studies three aspects of the Turkish-Armenian conflict. First of all, contrary to what the main Armenian and pro-Armenian affirm, there were hundreds of thousands, likely 500,000 Armenians, who were exempted of relocation, particularly in Istanbul, Western and Central Anatolia as well as in the Arab provinces. Then, the policy of the Ottoman government vis-à-vis the Armenian exiles was a protective ones, even if this protection failed in a considerable number of cases. The orders from Istanbul are clear. In particular, it is false to assert that the Ottoman government did not provide food and opposed the foreign relief. Such accusations are based on manipulation of evidence and neglect Ottoman as well as American and German sources. The relocation of 1915-16 is also misrepresented if described as the only reason for the losses of the Ottoman Armenian community between 1914 and 1922. In fact, the Russian relocation and the flow of refugees have to be considered, as well as the direct responsibilities of the Armenian extremists in the emigration of Armenians from Cilicia during the French withdrawal and the Greek scorched earth policy in 1922, which included the forced exile of the Christians from Western Anatolia.

XVIII. Türk Tarih Kongresi

This essay analyzes the book authored by Armenian American journalist Meline Toumani. Being a very personal story based on her experiences in the United States, Turkey, and Armenia, based on a significant number of interviews rather than on any research in any archives, or even a real work in libraries, having no footnote, the book is not, at any level, a scholarly one. Written, as a whole, with a sincerity that is not often the most obvious quality of mainstream Armenian-heritage authors in the U.S. after 1965, Toumani’s work will remain as an important source for the culture of hate within the Armenian diaspora of North America, as well as on the place taken by the “genocide” claims in the definition of the contemporary Armenian identity. Yet, the author eventually failed in her attempt to completely give up the prejudices and indoctrination she received, particularly in the summer camps of the Armenian Youth Federation. Relying heavily, during her time in Turkey, on ignorant or misinformed individuals who identify themselves as “liberals” and who promote tendentious views, and having not acquired the minimal knowledge on Turkish history and society, still less on the Turkic-Armenian conflict, Toumani remains in the middle of the fork, leaving an unachieved, albeit interesting, work.

Taner Akçam

The dust jacket of Guenther Lewy's The Armenian Massacres in Ottoman Turkey: A Disputed Genocide2 features Norman Stone's assertion that this book, ''which has Olympian fair-mindedness as well as thorough knowledge of the various sources, now replaces everything else. '' Lewy claims, in his book, to be situated outside the parameters of what he describes as ''the Turkish view'' and ''the Armenian view. '' Having positioned himself as being above such partisanship, he also claims that his book ''subjects the rich historical evidence available to the test of consistency and (as much as the state of knowledge allows) attempts to sort out the validity of the rival arguments'' (x). Follow this and additional works at: http://scholarcommons.usf.edu/gsp

Genocide Studies and Prevention

ABSTRACT Taner Akçam was born in Turkey in 1953. As the editor-in-chief of a student political journal, he was arrested in 1976 and sentenced to ten years&amp;#39; imprisonment; Amnesty International adopted him as a prisoner of conscience. A year later, he escaped to political asylum in Germany. In 1988 he undertook research in sociology at the Hamburg Institute for Social Research. His first topic was the history of political violence and torture in the late Ottoman Empire and early Republic of Turkey. In 1995 he earned his doctorate from the University of Hanover; since 2002 he has been Visiting Associate Professor of History at the University of Minnesota. Professor Akçam has since lectured and published extensively on the Armenian Genocide; his eleven books and numerous articles in English, French, German, and Turkish include Armenien und die Völkermord (2nd ed. 2005); Dialogue across an International Divide: Essays Towards a Turkish-Armenian Dialogue (2001); From Empire to Republic: Turkish Nationalism and the Armenian Genocide (2004); and the forthcoming A Shameful Act: The Armenian Genocide and Turkish Responsibility. He is currently working on a book with Vahakn N. Dadrian, The Protocols of the Istanbul Military Tribunals on the Investigation of the Armenian Genocide. 1. Excerpt from a long interview with Mehmet Talât, conducted in 1918 by Muhittin Birge, who had succeeded Hüseyin Cahit as editor of CUP&amp;#39;s semi-official organ, Tanin, and published as part of Birgen&amp;#39;s memoirs: &amp;quot;Muhittin Birgen&amp;#39;in Anıları,&amp;quot; Son Posta, 20 October 1936. Unless otherwise noted, all translations into English are my own. 2. Guenter Lewy, The Armenian Massacres in Ottoman Turkey: A Disputed Genocide (Salt Lake City: University of Utah Press, 2004). Subsequent references appear parenthetically in the text. 3. Tessa Hofmann, &amp;quot;Serielle Genozidrevision: Buchbesprechung von E. Jäckel,&amp;quot; Frankfurter Allgemeine faz.net, 23 March 2006, http://www.faz.net/s/RubCB85F279145C457C8259D20FF00682A9/Doc~E3E0055D9443C4696B61E5FE37258ABBE~ATpl~Ecommon~Skomlist.html (accessed 8 January 2008). The original reads, &amp;quot;Im Sommer 2000 äußerte auf meinem Sofa ein Rentner befremdliche Absichten: Er wolle, so der emeritierte US-Politologe Guenter Lewy, die &amp;quot;armenischen Massaker&amp;quot; einer ähnlichen Revision unterziehen, wie er das zuvor mit den Sinti und Roma getan habe. Dabei hätte sich gezeigt, dass deren Schicksal im Zweiten Weltkrieg zwar tragisch verlaufen sei, doch keinen &amp;quot;richtigen&amp;quot; Völkermord darstelle, weil zentrale staatliche Vorsätzlichkeit und Absicht nicht nachweisbar gewesen seien.&amp;quot; 4. Aram Andonian, The Memoirs of Naim Bey: Turkish Official Documents Relating to the Deportations and Massacres of Armenians (Newton Square, PA: Armenian Historical Research Association, 1965). 5. Şinasi Orel and Süreyya Yuca, The Tâlat Pasha &amp;quot;Telegrams&amp;quot;: Historical Fact or Armenian Fiction? (Nicosia: K. Rustem and Brother, 1986). 6. Given their numbers, it is impossible to provide here a list of all these works and memoirs. However, mentioning the names of a few individuals who have produced detailed works on this subject may suffice: Yusuf Hikmet Bayur, Şükrü Hanioğlu, Şerif Mardin, Tarık Zafer Tunaya, Sina Akşin, Feroz Ahmad, Y.A. Petrosyan, Şevket Süreyya Aydemir, and Ahmed Bedevi Kuran. It is indeed impossible to find a single document or piece of evidence in the relevant and detailed writings of such prominant İttihadist authors as Hüseyin Cahit Yalçın, Celal Bayar, Halil Menteşe, and Kazım Karabekir, or in the memoirs of CUP insiders such as Mustafa Ragıp Esatlı, Hüsamettin Ertürk, and Galip Vardar ve Arif Cemil, that might corroborate Lewy&amp;#39;s claim that within the CUP, or in the relationship between government and local power wielders, there was any conflict along the center-region axis. It is useful to add here that there is plenty of material in these sources, especially in the memoirs, on the subject of internal conflict within the central body of CUP, involving, for example, rivalries between Talât and Enver; between these two, on the one hand, and Cemal, on the other hand; and between the civil and military wings of the party. I must especially emphasize the fact that most of these sources are in Turkish. 7. Osmanlı Belgelerinde Ermeniler (1915-1920) [Armenians in Ottoman Documents, 1915-1920] (Ankara: Başbakanlık Bas...

Abstract. The author analyzes the Ottoman Archives as a source of information on the Armenian Genocide of 1915. He discusses the contradictory positions of two broad groups of scholars on the reliability of these archives, concluding that the Ottoman Archives agree with the information found in the archives of the United States, Britain, Germany, and Austria. He discusses the various categories of Ottoman documents, which mostly came out during the trials related to the Armenian Genocide, which took place from 1919 to 1921, and makes clear that there was a wide-ranging cleansing operation of the archives after the armistice in 1918. The author explores the reliability of this evidence and, based on the existing documents that remain, tries to reconstruct the structure and implementation of the genocide. He concludes that the Ottoman documents clearly show the genocidal intent of the Ottoman authorities and puts the Armenian genocide within the broader context of an overarching plan to homogenize the ethnic population of Anatolia.

Christin Pschichholz (ed.), The First World War as a Caesura? Demographic Concepts, Population Policy, and Genocide in the Late Ottoman, Russian, and Habsburg Spheres (Gewaltpolitik und Menschenrechte (GM), Band 3. 7 Abb.; 247 S.

1914 was a crucial year for the Ottoman government under the leading political organization/party of the revolutionary Young Turks, the Committee of Union and Progress (CUP). Ever since the consolidating their power as a de-facto dictatorship by a military coup of January 1913 (Bâbıâli Baskını), they started to pursue a radical policy towards the recovery of the territories lost in the Balkans during the years following the 1908 revolution – the area symbolically synonymous with the ‘Macedonian Question’. ...

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Crimes Against Humanity, Essay Example

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Throughout sports’ history, Americans by and large don’t stress or mind using names that have largely irritated or offended Native Americans, because it has been a typical subject of games for quite some time. Groups like the Washington Redskins, Florida State Seminoles, Kansas City Chiefs, and Cleveland Indians to name a few  have offensive and disdainful names, mascots and customs that demean Native American societies. These matter of course and leveled out supremacist acts however are permitted to proceed because there is almost no open clamor. Barely anybody would candidly confess to being bigot, however public opinion has ended up altogether acclimated to bias and criticism towards Native Americans that the issue is for the most part rejected and brought down once more.  While many critics have made the case for dropping the Native American Names, “Crimes Against Humanity by Churchill does provide an explicit rhetoric, but makes the reader uncomfortable through his provocative tone and terms. Ward Churchill’s article provides the reader with straightforward approach, with the utilization of Native-American generalizations in media symbolism games marking and item marking in American society compares to complicity in genocide against Native-Americans.

Churchill contends in ‘Criminal acts Against Humanity’ that the proceeded with utilization of Native American names as games mascots is discriminating and bigoted. In securing his focuses, he utilizes talk terms, for example, bigotry, discrimination, and racism, identified with Native-Americans in contemporary U.S. society. Ward Churchill in his article “Criminal acts Against Humanity” additionally accepts that while individuals do not mean to be supremacist, the measures of public opinion disregarding the bias is the thing that allows fans to negligence the absolute prejudice. Recognized by Churchill, American Indian and Anti-Defamation organizer Russell Means has contrasted groups as the Indians with Germans naming soccer groups the “Jews,” Hebrews,” and “Yids” while beautifying cliché depictions from the Nazi’s promulgation battle throughout WWII. Keeping in mind most individuals would be dismayed by the idea of naming a group by racial slurs and pushing cliché exhibits, groups are unwittingly promoting disparaging representations of Native cultures.

In counter arguing, Churchill it could be made that while Americans don’t abhor or look down upon Native Americans and their societies; they simply have ended up so usual to the bigotry that they don’t perceive when it before them. Ward Churchill additionally accepts that while individuals do not mean to be supremacist, the gauges of public opinion disregarding the bias is the thing that permits fans to negligence the unmitigated prejudice. Recognized by Churchill, American Indian and Anti-Defamation organizer Russell Means has distinguished groups like the Indians with Germans naming soccer groups the “Jews,” Hebrews,” and “Yids” while beautifying cliché depictions from the Nazi’s promulgation battle throughout WWII. Keeping in mind most individuals would be dismayed by the idea of naming a group by racial slurs and pushing cliché exhibits, does American games do any distinctive? Groups are unwittingly pushing defamatory representations of Native cultures. This article principally uses rhetoric in explaining the victimization Native Americans in the larger societal scope in their favoritism in sports while ignoring the offense. Churchill contrasts Native Americans have been oppressed with nonexistent instances of victimization different races/ nationalities. Churchill states that naming a sports group after a certain race is oppressive, regardless of the fact that it is not perceived by public opinion. One of the numerous groups that give a reference to Native Americans incorporates the Redskins. Albeit Native Americans may perceive this name as oppressive, others don’t perceive that. My elucidation of the name is not oppressive – to me it passes on and solid and overcoming picture. In any case, as Churchill proposes, I would unquestionably decipher a name, for example, the “Fresno Fags” or the “Wisconsin Wetbacks” as prejudicial. There would be no doubt those names were offending to the individuals relating to that gathering.

While Ward Churchill does realize a legitimate point in his exposition, a large portion of it is lost in his exasperated digression. The principal 50% of the article abandons your attention, in being overweighed by the emotional delivery of the author. Churchill truly pushes the envelope by attempting to contrast naming a group the Redskins with naming one the “Fresno Fags or “New Orleans Niggers.” While it has been perceived that naming a group the Redskins, or walking around a personification of an Indian as a mascot is barely respecting Indians. Naming a group after a class of individuals when they are usually named after creatures could undoubtedly be interpreted as a racial slur. Most readers would mostly neglect to see or surrender to any of Churchill’s focuses because one is so put off by his presentation. Individuals will get so diverted by the unequal correlation that they will totally overlook the central issue. Nobody is going name a group the New Orleans Niggers because “nigger” is an inarguably hostile term while “redskin” is not considered so. In making his argument stronger, he should have used the example of calling a Native American an injun or a savage, which would have been more substantial emotional impact, because those words have more negative intentions. As the short foreword to this article alerts, this paper is off-putting and fierce and may bring distress to some of its audiences.

Works Cited

Churchill, Ward. “Crimes Against Humanity.” Autonomous Confederation – American Indian Movement . Print.

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Guest Essay

Is This the End of Academic Freedom?

By Paula Chakravartty and Vasuki Nesiah

Dr. Chakravartty is a professor of media, communication and culture at New York University, where Dr. Nesiah is a professor of practice in human rights and international law.

​At New York University, the spring semester began with a poetry reading. Students and faculty gathered in the atrium of Bobst Library. At that time, about 26,000 Palestinians had already been killed in Israel’s horrific war on Gaza; the reading was a collective act of bearing witness.

The last poem read aloud was titled “If I Must Die.” It was written, hauntingly, by a Palestinian poet and academic named Refaat Alareer who was killed weeks earlier by an Israeli airstrike. The poem ends: “If I must die, let it bring hope — let it be a tale.”

Soon after those lines were recited, the university administration shut the reading down . Afterward, we learned that students and faculty members were called into disciplinary meetings for participating in this apparently “disruptive” act; written warnings were issued.

We have both taught at N.Y.U. for over a decade and believe we are in a moment of unparalleled repression. Over the past six months, since the start of Israel’s war on Gaza, we have seen the university administration fail to adequately protect dissent on campus, actively squelching it instead. We believe what we are witnessing in response to student, staff and faculty opposition to the war violates the very foundations of academic freedom.

While N.Y.U. says that it remains committed to free expression on campus and that its rules about and approach to protest activity haven’t changed, students and faculty members in solidarity with the Palestinian people have found the campus environment alarmingly constrained.

About a week after Hamas’s attacks in October, the Grand Staircase in the Kimmel student center, a storied site of student protests , closed indefinitely; it has yet to reopen fully. A graduate student employee was reprimanded for putting up fliers in support of Palestinians on the student’s office door and ultimately took them down; the person is not the only N.Y.U. student to face some form of disciplinary consequence for pro-Palestinian speech or action. A resolution calling for the university to reaffirm protection of pro-Palestinian speech and civic activity on campus, passed by the elected Student Government Assembly back in December, has apparently been stuck in a procedural black hole since.

The New York Police Department has become a pervasive presence on campus, with over 6,000 hours of officer presence added after the war broke out. Hundreds of faculty members have signed onto an open letter condemning the university’s “culture of fear about campus speech and activism.”

Such draconian interventions are direct threats to academic freedom.

At universities across the country, any criticism of Israel’s policies, expressions of solidarity with Palestinians, organized calls for a cease-fire or even pedagogy on the recent history of the land have all emerged as perilous speech. In a letter to university presidents in November, the A.C.L.U. expressed concern about “impermissible chilling of free speech and association on campus” in relation to pro-Palestinian student groups and views; since then, the atmosphere at colleges has become downright McCarthyite .

The donors, trustees, administrators and third parties who oppose pro-Palestinian speech seem to equate any criticism of the State of Israel — an occupying power under international law and one accused of committing war crimes — with antisemitism. To them, the norms of free speech are inherently problematic, and a broad definition of antisemitism is a tool for censorship . Outside funding has poured into horrifying doxxing and harassment campaigns. Pro-Israel surveillance groups like Canary Mission and CAMERA relentlessly target individuals and groups deemed antisemitic or critical to Israel. Ominous threats follow faculty and students for just expressing their opinions or living out their values.

To be clear, we abhor all expressions of antisemitism and wholeheartedly reject any role for antisemitism on our campuses. Equally, we believe that conflating criticism of Israel or Zionism with antisemitism is dangerous. Equating the criticism of any nation with inherent racism endangers basic democratic freedoms on and off campus. As the A.C.L.U. wrote in its November statement, a university “cannot fulfill its mission as a forum for vigorous debate” if it polices the views of faculty members and students, however much any one of us may disagree with them or find them offensive.

In a wave of crackdowns on pro-Palestinian speech nationwide, students have had scholarships revoked, job offers pulled and student groups suspended. At Columbia, protesters have reported being sprayed by what they said was “skunk,” a chemical weapon used by the Israeli military; at Northwestern, two Black students faced criminal charges , later dropped, for publishing a pro-Palestinian newspaper parody; at Cornell, students have been arrested during a peaceful protest . In a shocking episode of violence last fall, three Palestinian students , two of them wearing kaffiyehs, were shot while walking near the University of Vermont.

Many more cases of student repression on campuses are unfolding even as we write this.

Academic freedom, as defined by the American Association of University Professors in the mid-20th century , provides protection for the pursuit of knowledge by faculty members, whose job is to educate, learn and research both inside and outside the academy. Not only does this resonate with the Constitution’s free speech protections ; international human rights law also affirms the centrality of academic freedom to the right to education and the institutional autonomy of educational institutions.

Across the United States, attacks on free speech are on the rise . In recent years, right-wing groups opposed to the teaching of critical race theory have tried to undermine these principles through measures including restrictions on the discussion of history and structural racism in curriculums, heightened scrutiny of lectures and courses that are seen to promote dissent and disciplinary procedures against academics who work on these topics.

What people may not realize is that speech critical of Israel’s occupation and apartheid policies has long been censored, posing persistent challenges to those of us who uphold academic freedom. Well before Oct. 7, speech and action at N.Y.U. in support of Palestinians faced intense and undue scrutiny.

Our students are heeding Refaat Alareer’s call to bear witness. They are speaking out: writing statements, organizing protests and responding to a plausible threat of genocide with idealism and conviction. As faculty members, we believe that college should be a time when students are encouraged to ask big questions about justice and the future of humanity and to pursue answers however disquieting to the powerful.

Universities must be places where students have access to specialized knowledge that shapes contemporary debates, where faculty members are encouraged to be public intellectuals, even when, or perhaps especially when, they are expressing dissenting opinions speaking truth to power. Classrooms must allow for contextual learning, where rapidly mutating current events are put into a longer historical timeline.

This is a high-stakes moment. A century ago, attacks on open discussion of European antisemitism, the criminalization of dissent and the denial of Jewish histories of oppression and dispossession helped create the conditions for the Holocaust. One crucial “never again” lesson from that period is that the thought police can be dangerous. They can render vulnerable communities targets of oppression. They can convince the world that some lives are not as valuable as others, justifying mass slaughter.

It is no wonder that students across the country are protesting an unpopular and brutal war that, besides Israel, only the United States is capable of stopping. It is extraordinary that the very institutions that ought to safeguard their exercise of free speech are instead escalating surveillance and policing, working on ever more restrictive student conduct rules and essentially risking the death of academic freedom.

From the Vietnam War to apartheid South Africa, universities have been important places for open discussion and disagreement about government policies, the historical record, structural racism and settler colonialism. They have also long served as sites of protest. If the university cannot serve as an arena for such freedoms, the possibilities of democratic life inside and outside the university gates are not only impoverished but under threat of extinction.

Paula Chakravartty is a professor of media, communication and culture at New York University, where Vasuki Nesiah is a professor of practice in human rights and international law. Both are members of the executive committee of the N.Y.U. chapter of the American Association of University Professors and members of N.Y.U.’s Faculty for Justice in Palestine.

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