Historical Origins of Human Rights

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Historical Origins of Human Rights

• Lecture 16
• The Geneva and Genocide Conventions
• November 3, 2005

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outline

• law as retrospective and prospective
• founding the postwar order in the law of war
• law and atrocity, regulation and violence,
  humanitarian law and the moderation of war
  
• the Geneva Conventions important features
• Raphael Lemkin and the Genocide Convention
• the spectacular and the structural

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prospective rules

• the Nuremberg trials retrospective judgment
• based on prospective principles, and providing
  much value as precedent
  
• but trials were only one way also a new body of
  rules that might help the world avoid any
  repetition of the immediately preceding
  brutality
• in some respects, these new rules went even
  further than Nuremberg had in extending
  humanitarian protection

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the ICRC

• the ICRCs emergence from war
• Nobel Peace Prize
• the Committee by its action throughout this war
  has held aloft the fundamental conceptions of the
  solidarity of the human race, and the identity of
  the vital interests of different nations and of
  the need for true understanding and
  reconciliation, if peace is ever to be brought
  about. In doing so, it has contributed to the
  promotion of the concept of that fraternity
  among nations

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the Geneva Conventions

• text (1949, U.S. joins in 1955)
• four conventions (four common articles to
  each)
  
• I sick and wounded soldiers
• II naval equivalent
• III POWs
• IV civilians
• angles who is covered, what is new about the
  content, and how enforced?
  

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the end of reciprocity requirement

• Art. 2. In addition to the provisions which shall
  be implemented in peace-time, the present
  Convention shall apply to all cases of declared
  war or of any other armed conflict which may
  arise between two or more of the High Contracting
  Parties, even if the state of war is not
  recognized by one of them. The Convention shall
  also apply to all cases of partial or total
  occupation of the territory of a High Contracting
  Party, even if the said occupation meets with no
  armed resistance. Although one of the Powers in
  conflict may not be a party to the present
  Convention, the Powers who are parties thereto
  shall remain bound by it in their mutual
  relations. They shall furthermore be bound by the
  Convention in relation to the said Power, if the
  latter accepts and applies the provisions thereof.

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significance

• treaty and contract mutuality or reciprocity
• problems in law of war
• what if no resistance?
• what if one side not a party?
• a note on IHL as customary law

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possibilities

• party v party both bound
• party v. alliance of party and non-party parties
  bound in fighting each other
  
• party v. non-party both bound if non-party
  accepts rules in practice
  
• non-party v. non-party apparently no rules
• But cf. Art. 4 Nationals of a State which is
  not bound by the Convention are not protected by
  it. (but cf. Convention IV, Art. 14 on civilians)

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Alberto Gonzales memo
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U.S. argument as adopted

• first, U.S. decision whether conventions apply
• who else?
• it is true that Afghanistan was a bound party
• but enemy pursued (al Qaeda) not a state
• Taliban sheltering enemy not a state
• therefore, no need to reach question of who bound
  because there is no other state involved
  
• see web for Colin Powells protest and Gonzaless
  reply

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Common Art. 3

• Art. 3. In the case of armed conflict not of an
  international character occurring in the
  territory of one of the High Contracting Parties,
  each Party to the conflict shall be bound to
  apply, as a minimum, the following provisions
  (1) Persons taking no active part in the
  hostilities, including members of armed forces
  who have laid down their arms and those placed
  hors de combat by sickness, wounds, detention, or
  any other cause, shall in all circumstances be
  treated humanely, without any adverse distinction
  founded on race, colour, religion or faith, sex,
  birth or wealth, or any other similar criteria.
  To this end the following acts are and shall
  remain prohibited at any time and in any place
  whatsoever with respect to the above-mentioned
  persons (a) violence to life and person, in
  particular murder of all kinds, mutilation, cruel
  treatment and torture (b) taking of hostages
  (c) outrages upon personal dignity, in particular
  humiliating and degrading treatment (d) the
  passing of sentences and the carrying out of
  executions without previous judgment pronounced
  by a regularly constituted court, affording all
  the judicial guarantees which are recognized as
  indispensable by civilized peoples. (2) The
  wounded and sick shall be collected and cared
  for. An impartial humanitarian body, such as the
  International Committee of the Red Cross, may
  offer its services to the Parties to the
  conflict. The Parties to the conflict should
  further endeavour to bring into force, by means
  of special agreements, all or part of the other
  provisions of the present Convention. The
  application of the preceding provisions shall not
  affect the legal status of the Parties to the
  conflict.

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Bush directive
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Additional Protocol II (1977)

• 1. This Protocol, which develops and supplements
  Article 3 common to the Geneva Conventions of 12
  August 1949 without modifying its existing
  conditions or application, shall apply to all
  armed conflicts which are not covered by Article
  1 of the Protocol Additional to the Geneva
  Conventions of 12 August 1949, and relating to
  the Protection of Victims of International Armed
  Conflicts (Protocol I) and which take place in
  the territory of a High Contracting Party between
  its armed forces and dissident armed forces or
  other organized armed groups which, under
  responsible command, exercise such control over a
  part of its territory as to enable them to carry
  out sustained and concerted military operations
  and to implement this Protocol.2. This Protocol
  shall not apply to situations of internal
  disturbances and tensions, such as riots,
  isolated and sporadic acts of violence and other
  acts of a similar nature, as not being armed
  conflicts.

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civilians (Convention IV)

• Art. 13 The provisions of Part II cover the
  whole of the populations of the countries in
  conflict, without any adverse distinction based,
  in particular, on race, nationality, religion, or
  political opinion, and are intended to alleviate
  the sufferings caused by war.
• Part II basic protections
• Art. 32-34 collective penalties, pillage,
  reprisals, hostage taking
  
• Part III, Sect. 3 rules governing occupation
  Sect. 4 rules governing detention

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nuclear weapons

• mines, biological, chemical weapons
• but nuclear weapons are not illegal
• International Court of Justice advisory opinion
  (1996)
  
• 95. Nor can the Court make a determination on the
  validity of the view that the recourse to nuclear
  weapons would be illegal in any circumstance
  owing to their inherent and total incompatibility
  with the law applicable in armed conflict.
  Certainly, as the Court has already indicated,
  the principles and rules of law applicable in
  armed conflict at the heart of which is the
  overriding consideration of humanity make the
  conduct of armed hostilities subject to a number
  of strict requirements. Thus, methods and means
  of warfare, which would preclude any distinction
  between civilian and military targets, or which
  would result in unnecessary suffering to
  combatants, are prohibited. In view of the unique
  characteristics of nuclear weapons, to which the
  Court has referred above, the use of such weapons
  in fact seems scarcely reconcilable with respect
  for such requirements. Nevertheless, the Court
  considers that it does not have sufficient
  elements to enable it to conclude with certainty
  that the use of nuclear weapons would necessarily
  be at variance with the principles and rules of
  law applicable in armed conflict in any
  circumstance.

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humanizing law as a moral strategy

• insofar as law is allowed to get a foothold in
  war, it will slowly grow to allow the abolition
  of war Gustave Moynier of ICRC We might note
  that the Convention has furnished an argument in
  favor of the brotherhood of men. In subscribing
  to it, the several factions of civilized mankind
  have never before with so much unity placed
  themselves under a common rule, formulated
  entirely in light of moral considerations.
  Recognizing that after all they all belong to the
  same family, men have concluded that they ought
  to begin by showing some regard for anothers
  suffering, up to a certain point pending the
  time when a still stronger conviction of their
  common humanity shall lead them to understand
  that the very idea of their killing one another
  is monstrous. La civilisation de la guerre
  the humanizing of war could end only in its
  abolition. Sursum corda! (1890). (Sursum corda
  Latin for Lift up your hearts, said in Mass
  right before the beginning of the Eucharistic
  Prayer, after the gifts of bread and wine have
  been brought forward to be consecrated.)

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law as limited vehicle

• law as vehicle of humane values
• but limits of law persisting need for
  contractual acceptance of rules later applied
  
• respect for internal sovereignty
• leaving future cases out only as good as the
  last war?
  
• coverage v. nothingness

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grave breaches

• IV, Art. 147 Grave breaches shall be those
  involving any of the following acts, if committed
  against persons or property protected by the
  present Convention willful killing, torture or
  inhuman treatment, including biological
  experiments, willfully 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 willfully depriving a 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.

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from Nuremberg to Geneva

• incorporates Nuremberg concept of individual
  responsibility for state crime
  
• drops term crime against humanity
• but grave breaches incorporates Nuremberg
  crimes against humanity and adds new ones
  
• Nuremberg murder, enslavement, deportation, and
  other inhuman acts on political, racial, or
  religious grounds
  
• Geneva adds torture, biological experimentation,
  unjustified extrajudicial procedures to list
  
• later more specification of crimes
• and search for enforcement

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enforcement

• Art. 146 The High Contracting Parties undertake
  to enact any legislation necessary to provide
  effective penal sanctions for persons committing,
  or ordering to be committed, any of the grave
  breaches of the present Convention defined in the
  following Article. Each High Contracting Party
  shall be under the obligation to search for
  persons alleged to have committed, or to have
  ordered to be committed, such grave breaches, and
  shall bring such persons, regardless of their
  nationality, before its own courts. It may also,
  if it prefers, and in accordance with the
  provisions of its own legislation, hand such
  persons over for trial to another High
  Contracting Party concerned, provided such High
  Contracting Party has made out a prima facie case

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Raphael Lemkin (1900-1959)
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a crime with a name

• Lemkin, Axis Rule in Occupied Europe (1944)
• the word genocide as deriving from the Greek
  word genos (tribe, race) and the Latin cide
  
• interwar background Madrid Conference, 1933
• barbarism and vandalism (culture)
• barbarism as precursor concept of genocide
• Genocide Convention (approved 1948, entry in
  force 1951)

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the force of personality

• Never in the history of the United Nations has
  one private individual conducted such a lobby. He
  could be seen everywhere in the committee rooms
  and, by common consent, was accorded privileges
  denied to other private individuals. But he was a
  very difficult man, who looked for enemies under
  every bench, which was probably the reason we had
  difficulty getting the jurists to sit down around
  one table they even refused to have their
  picture taken together. (John Humphrey)
• I do not belong exclusively to one race or
  religion. God chose me for a cause that is larger
  than my interests, as large as all humanity. I
  feel that there is a protective force working
  with me, otherwise I would not have been able to
  survive. (Lemkin on himself)

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barbarism

• barbarism If we analyze the driving ideas of
  certain offences against the law of nations, like
  trade in slaves and trade in women and children,
  we see that if these offences are regarded as
  punishable, it is due to humane principles. In
  these cases the principles are, above all, to
  protect the freedom and the dignity of the
  individual, and to prevent human beings from
  being treated as merchandise.  Some other
  provisions relating to the offences against the
  law of nations relate to the protection and
  maintenance of the normal peaceful relations
  between collectivities, for example the offence
  of the propaganda for a war of aggression. The
  prohibitions of such attacks have as a goal to
  assure good cultural and economic relations
  between nations.  However, there are offences
  which combine these two elements. In particular
  these are attacks carried out against an
  individual as a member of a collectivity. The
  goal of the author of the crime is not only to
  harm an individual, but also to cause damage to
  the collectivity to which the later belongs.
  Offenses of this type bring harm not only to
  human rights, but also and most especially they
  undermine the fundamental basis of the social
  order. Let us consider, first and foremost, acts
  of extermination directed against the ethnic,
  religious or social collectivities whatever the
  motive (political, religious, etc.) for example
  massacres, pogroms, actions undertaken to ruin
  the economic existence of the members of a
  collectivity, etc. Also belonging in this
  category are all sorts of brutalities which
  attack the dignity of the individual in cases
  where these acts of humiliation have their source
  in a campaign of extermination directed against
  the collectivity in which the victim is a
  member.

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nature of concept

• who does it protect? answer homogeneous groups,
  on the grounds that group identity is especially
  (more than individual or masses of heterogeneous
  individuals) valuable and in need of protection
•  As legally defined, in effect, genocide refers
  to the massacre only of certain communities. It
  is a crime committed not against members of
  ethnically or racially or religiously diverse
  groups but only against members of ethnically or
  racially or religiously homogeneous groups.
• consequently, the list of mass homicides that
  dont fall under the genocide convention is long

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genocide or human rights?

• it turns out that genocide is a version of the
  interwar focus on minority rights
  
• Lemkins role is doggedly preserving a remnant of
  it in a new time focused on individual rights
  
• some (like Charles Malik and René Cassin) saw
  potential tension between two instruments and
  opposed the genocide convention
  
• Lemkin on engagement (human rights declaration)
  versus marriage (genocide convention) They
  should postpone the education of the free world
  of humanity, and rather turn the sharp edge of
  international law, such as the genocide
  convention, which is already in force against the
  modern Genghis Khans...

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are groups biological?

• not merely the project of substituting one
  culture for another while the old people remain
  alive under the new regime
  
• a process in which the population is attacked,
  in a physical sense, and is removed and
  supplanted by populations of the oppressor
  nations.
• the physical decline and even destruction of the
  population involved.

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why peoplehood?

• Lemkin It became clear to me that the diversity
  of nations, religious groups and races is
  essential to civilization because every one of
  these groups has a mission to fulfill and a
  contribution to make in terms of culture. To
  destroy these groups is opposed to the will of
  the Creator and to disturb the spiritual harmony
  of mankind.
• The philosophy of the Genocide Convention is
  based on the formula of the human cosmos. This
  cosmos consists of four basic groups national,
  racial, religious and ethnic. The groups are
  protected not only by reason of human compassion
  but also to prevent draining the spiritual
  resources of mankind.

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the exclusion of cultural or political
homogeneity (or heterogeneity)

• The Soviets succeeded in excluding mass murder
  for political reasons from the definition of
  genocide the law did not protect political
  groups. (The Soviet delegation and its
  supporters, mainly Communist countries in Eastern
  Europe as well as some Latin American countries,
  had argued that including political groups in the
  convention would inhibit states that were
  attempting to suppress internal armed revolt.)

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towards the convention

• in December 1946, the General Assembly of the UN
  adopted a resolution affirming genocide as a
  crime denying the right of existence of entire
  human groups that issued in great losses to
  humanity in the form of cultural and other
  contributions.
• the indictment of the IMT included deliberate
  and systematic genocide, viz., the extermination
  or racial and national groupsparticularly Jews,
  Poles, and Gypsies.
• but none of the accused Nazis was convicted of
  this crime.
  
• Lemkin one of three experts appointed to help
  formulate a draft convention (the Secretariats
  Draft) that included a special provision on
  cultural genocide that did not survive
• but this provision, per se, did not survive
• why not?
• upwards of 50 nations in first few years (United
  States in 1988)

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the text

• Article 1 The Contracting Parties confirm that
  genocide, whether committed in time of peace or
  in time of war, is a crime under international
  law which they undertake to prevent and to
  punish.
• Article 2 In the present Convention, genocide
  means any of the following acts committed with
  intent to destroy, in whole or in part, a
  national, ethnical, racial or religious group, as
  such  (a) Killing members of the group (b)
  Causing serious bodily or mental harm to members
  of the group (c) Deliberately inflicting on the
  group conditions of life calculated to bring
  about its physical destruction in whole or in
  part (d) Imposing measures intended to prevent
  births within the group (e) Forcibly
  transferring children of the group to another
  group.
• Article 3 The following acts shall be
  punishable (a) Genocide (b) Conspiracy to
  commit genocide (c) Direct and public incitement
  to commit genocide (d ) Attempt to commit
  genocide (e) Complicity in genocide.
• Article 4 Persons committing genocide or any of
  the other acts enumerated in article III shall be
  punished, whether they are constitutionally
  responsible rulers, public officials or private
  individuals.
• Article 5 The Contracting Parties undertake to
  enact, in accordance with their respective
  Constitutions, the necessary legislation to give
  effect to the provisions of the present
  Convention, and, in particular, to provide
  effective penalties for persons guilty of
  genocide or any of the other acts enumerated in
  article III.
• Article 6 Persons charged with genocide or any
  of the other acts enumerated in article III shall
  be tried by a competent tribunal of the State in
  the territory of which the act was committed, or
  by such international penal tribunal as may have
  jurisdiction with respect to those Contracting
  Parties which shall have accepted its
  jurisdiction.
• Article 8 Any Contracting Party may call upon
  the competent organs of the United Nations to
  take such action under the Charter of the United
  Nations as they consider appropriate for the
  prevention and suppression of acts of genocide or
  any of the other acts enumerated in article III.

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Nuremberg and the convention

• the Genocide Convention broke one of the major
  limitations of at least one crime against
  humanity. For the convention entirely detaches
  genocide from the requirement at Nuremberg of any
  connection with other and bigger crimes. Now, it
  is prohibited on its own. It does not even matter
  if it occurs in the absence of an armed conflict
  it is wrong no matter what the circumstances in
  which it occurs

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genocide and Holocaust consciousness

• return not just of genocide in the 1990s but also
  return of genocide consciousness
  
• Peter Novick, The Holocaust in American Life
  (1999) By making the Holocaust the emblematic
  atrocity, have we made resemblance to it the
  criterion by which we decide what horrors command
  our attention? Is the (quite unintended) result
  that horrors which dont meet that criterion seem
  insufficiently dramatic, even a bit boring? Im
  not sure of the answers to these questions. But
  the curious anomaly remains. For many years weve
  been talking about the culpability of bystanders
  and the crime of indifference. And over those
  years very few have thought that our standing by
  in the face of the preventable, in unholocaustal,
  deaths of millions of children annually has any
  connection to the crime of indifference.

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war and law

• war and law, 1850-1950 why different results
  than torture and slavery?
  
• the century-long engagement of humanitarianism
  with war left a long-term legacy, shaping
  expectations about what the worst wrongs are and
  what objects humanitarianism is supposed to be
  about, just as it has shaped expectations about
  how to respond.

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war and law, contd

• Marx/Foucault
• that humanitarianism attempted to master war left
  an important basis for moral reflection and
  action when the problems of war recurred, eg, in
  the 1990s story of the return of genocide.
• but before and during the 1990s, and today,
  were/are there comparable sufferings that the
  humanitarian imagination, primed and shaped by
  war, wasnt up to seeing and addressing?