Denationalization

The Commission on the Responsibility of the Authors of War and on Enforcement of Penalties first used the term denationalization in 1919 in an early effort to describe crimes similar to genocide that were committed during World War I. It cited many examples of Bulgarian, German, and Austrian official attempts to "denationalize the inhabitants of the occupied territory" in Serbia. Among the specific violations mentioned were the prohibition of the Serb language; the destruction of archives, churches, monasteries, and law courts; and the closure of schools.

Genocide was first described as the destruction of the national pattern or character of the victimized group and replacing it with the national pattern or character of the oppressor. Therefore, genocide involved a two-stage process. It was the first stage, which entailed the destruction of the national pattern of the victimized group, for which the word denationalization was used. The national pattern or character would include the political and social institutions; the culture, language, national feelings, religion, and economic existence; and the personal security of national groups, as well as such basic concepts as life, liberty, health, and dignity. The destruction of these was tantamount to the destruction of a nation, or of an ethnic group, through a coordinated plan of different actions aiming at the destruction of essential foundations of life within the group, with the aim of destroying the group itself.

There are many features of the concept of denationalization that are also evident in the crime of genocide, war crimes, or crimes against humanity as they are defined today. One distinction, however, is that even these shared features are, in denationalization, specifically related to the treatment of national groups rather than groups in general. Another distinction between denationalization and genocide in particular is that genocide is seen in more explicitly physical terms—the killing of groups of people—whereas denationalization includes the destruction of the foundations of national groups, such as the group's culture.

An example of denationalization can be found in the 1947 Nuremburg trial of Ulrich Greifelt and Others. During the proceedings, reference was made to the war crime of denationalization, citing the policy of forcibly "Germanizing" some groups within the local population of occupied Poland. Among the groups so treated were Poles, Alsace-Lorrainers, and Slovenes, as well as others deemed eligible for Germanization under the German People's List.

History

Over the years and in numerous international documents, various attempts have been made to define genocide. In many instances, what is now known as the international crime of genocide overlaps with other war crimes and crimes against humanity. Recognition of denationalization as a war crime had its origins in the Hague Convention IV of 1907, which attempted to create proper divisions between the responsibility of the state at war and the treatment of innocent civilian in occupied territories. This Convention now forms a part of established international humanitarian law, and applies only in times of armed conflict. Legal scholar William A. Schabas has noted that Section III of the Hague Convention might serve as a legal basis for acts related to denationalization as a war crime. This section deals with military authority over the territory of the hostile state, and includes a provision that makes it illegal to "compel the inhabitants of an occupied territory to swear allegiance to the hostile power" and another which exhorts respect for "the lives of persons and private property, as well as religious convictions and practice."

The preamble of the Hague Conventions of 1907 further promises broad protection under international humanitarian law, stating that "the inhabitants and the belligerents remain under the protection and the principles of the law of nations, derived from the usages established among civilized peoples from the laws of humanity and the dictates of public conscience."

The governments of France, Great Britain, and Russia declared on May 24, 1915, that they would hold all members of the Turkish government personally responsible for "crimes against humanity" for the massacre of Armenians that was ongoing at the time. Earlier, the International Commission to Inquire into the Causes and Conduct of the Balkan Wars (1912–1913) had enumerated thirty-two broad categories of violations committed during that conflict, among them: "Attempts to denationalize the inhabitants of occupied territory."

At the second plenary session of the Paris Peace Conference, on January 25, 1919, the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties was established. The task of this Commission was to inquire into and report upon the violations of international law committed by Germany and its allies during World War I. At this time, however, there was no mention of individual prosecutions for atrocities against civilians, because the Commission's members were more preoccupied with developing offenses against the laws of war and felt that the principle of sovereignty required them to focus their examination on the atrocities committed by a government against peoples within its own borders.

In 1941 Nazi Germany passed a decree that denationalized German Jews, stripping them of their property and, later, their lives. It was not until 1945, however, after the atrocities committed against the Jews by the Nazis, that the Nuremberg Charter defined crimes against humanity to include acts against a civilian population whether they occurred before or during the war. The offenses included murder, extermination, enslavement, deportation, imprisonment, torture, and persecution. Subsequent international legislation has further refined and extended the definition of war crimes and crimes against humanity, including protections not only for national groups but to all groups at risk of victimization.

Recent Uses of Denationalization

Another legal scholar, John Dugard, has maintained that the South African apartheid government's official plan to assign all blacks to homelands effectively constituted an act of denationalization. The apartheid laws meant that blacks ceased to be nationals of South Africa, thus depriving them of political and civil rights in the land of their birth. Instead, blacks were reassigned to fictitious nationalities, of Transkei, Bophuthutswana, Venda, and Ciskei, ostensibly because of their association by birth, language, or culture with one or another of those territories. This was contrary to the prohibition on denationalization on grounds of race that has been confirmed by the Universal Declaration of Human Rights, the Convention on the Reduction of Statelessness, and the International Convention on the Elimination of All Forms of Racial Discrimination. Apartheid, including its denationalizing aspects, is a crime against humanity and is now recognised as such by the Rome Statute.

Current Status of Denationalization

Denationalization is presently listed in the Ethiopian Criminal Code in Article 282 (e). Both Australia and the Netherlands also make it a specific offense to attempt "to denationalize the inhabitants of occupied territory" within their respective borders. Whether or not a state's domestic law recognizes the offense, however, that state may still be charged with war crimes in cases of denationalization. The United States Department of Army Field Manual, in section 27–10, "The Law of Land Warfare," recognizes the Nuremberg principles of nonimmunity for government officials and disallows any defense based on domestic law "for an act which constitutes a crime under international law." The List of War Crimes prepared by the Responsibilities Commission of the Paris Peace Conference of 1919, as a schedule attached to the Manual, contains the crime of denationalization.

Nationality and Statelessness

Under international law, a state has the discretion to withdraw nationality from its citizens. However, this discretion has limitations, largely limiting such withdrawals to a case-by-case basis. The wholesale deprivation of nationality from an entire group or denationalization on grounds of race, as occurred in Nazi Germany and apartheid South Africa, is prohibited by the Convention on the Reduction of Statelessness of 1961. Yet the problem still persists. Events in the Middle East have led to the denationalization of 3.7 million Palestinians and the confiscation of their property. At the start of the twenty-first century, it remained as yet unclear whether there would be any political will within the international community to resolve this situation.

SEE ALSO Commission on Responsibilities; Hague Conventions of 1907

BIBLIOGRAPHY

Avalon Project. "Laws of War: Laws and Customs of War on Land (Hague IV); October 18, 1907." Available from http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm.

Commission on Responsibilities (1920). "Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties. Report presented to the Preliminary Peace Conference, March 29, 1919." American Journal of International Law 14:95–154.

Dugard, John (2001). International Law: A South African Perspective. Cape Town: Juta Law.

Lemkin, Raphael (1944). Axis Rule in Occupied Europe. Washington D.C.: Carnegie Endowment for International Peace.

Lemkin, Raphael (1947). "Genocide as a Crime under International Law." American Journal of International Law 41:145–151.

Schabas, William A. (2000). Genocide in International Law. Cambridge: Cambridge University Press.

Vinodh Jaichand