National Laws

Genocide, crimes against humanity, and war crimes are considered the core international crimes. The definition and penalization of these offenses date back to post–World War II instruments such as the Charter of the Nuremberg Tribunal, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and the 1949 Geneva Conventions Relating to the Protection of Victims of Armed Conflict. Their legal origin is thus clearly international and relatively recent. In practice, genocide, the crime of crimes according to William Schabas, and crimes against humanity may encompass war crimes (see, e.g., the decisions of the International Criminal Tribunal for Rwanda [ICTR]). When genocide or crimes against humanity committed within the context of an armed conflict are involved, therefore, national war crimes legislation may apply as well.

Core International Crimes and National Law

States parties to the Genocide Convention undertake "to prevent and to punish" genocide (Article I) and "to enact . . . the necessary legislation to give effect to the provisions of the Convention and, in particular, to provide effective penalties for persons guilty of genocide . . ." (Article V). Article VI of the Convention provides that "[p]ersons charged with genocide . . . 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." The international court envisaged in 1948 was established on July 1, 2002, when the Statute of the International Criminal Court (ICC) entered into force.

For war crimes the Geneva Conventions require adhering States "to enact any legislation necessary to provide effective penal sanctions for persons committing . . . any of the grave breaches of the present Convention. . . ." Grave breaches, the term used in the treaties, is understood to mean war crimes. States are also required to search for persons alleged to have committed, or to have ordered war crimes, and bring such persons, regardless of their nationality, before their own courts (Articles 49, 50, 129, and 146 of the four respective Geneva Conventions). Similar obligations exist for states who are parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Articles 4, 5, 6, and 8).

Crimes against humanity, in contrast, are not the subject of a specific convention. A treaty obligation "to prevent and to punish'" therefore does not exist, but resolutions by intergovernmental bodies, such as the United Nations (UN) General Assembly, have called on states to do so.

International law thus traditionally has allowed but not consistently required states to prosecute and punish international crimes. This has led to piecemeal domestic legislation. However, the creation of the ICC, which is "complementary to national jurisdictions" (ICC Statute, Article 1) has been an impetus for states to review and consolidate their relevant laws.

National Laws and Decisions

The countries discussed below are examples of states that have rendered related legal decisions and enacted related legislation. These landmark judicial cases include:

Public Prosecutor v. Cvjetkovic. (Austria.) Trial judgment, Landesgericht Salzburg (May 31, 1995); Appeals judgment, Oberste Gerichtshof (July 13, 1994).

Public Prosecutor v. the "Butare Four." (Belgium.) Trial judgment, Assize Court of Brussels (June 8, 2001).

Regina v. Finta. Trial judgment, 69 O.R.2d 557 (H.C. 1989), Ontario Court of Appeal (73 Canadian Criminal Case 3d 65; Ont. C.A.1992), Supreme Court of Canada [1994] 1 SCR 701 (March 24, 1994).

Sivakumar v. Canada. Minister of Employment and Immigration, Federal Court of Canada, Court of Appeal, 1 F.C. 433, 163 N.R. 197, 44 A.C.W.S (3d) 563 (November 4, 1993).

Mugesera v. Minister of Citizenship and Immigration. Immigration and Refugee Board, Adjudication Division, File No. QML-95-00171 (July 11, 1996).

Mugesera v. Canada. Immigration and Refugee Board, Appeal Division, Case No's. M96-10465 and M96-10466, Reasons and Order (November 6, 1998).

Mugesera et al. v. Canada. Minister of Citizenship and Immigration, 4 FC 421 (TD) (2001).

Public Prosecutor v. Barbie. (France.) Trial judgment, Assize Court of Rhône (July 4, 1987).

Public Prosecutor v. Touvier. (France.) Trial judgment, Assize Court of Yvelines (April 20, 1994).

Public Prosecutor v. Papon. (France.) Trial judgment, Assize Court of Gironde (April 2, 1998).

Attorney General of Israel v. Eichmann. Trial judgment, District Court of Jerusalem (December 12, 1961); Appeals judgment, Supreme Court of Israel (May 29, 1962).

Attorney General of Israel v. Demjanjuk. Trial judgment, District Court of Jerusalem (April 18, 1988); Appeals judgment, Supreme Court of Israel (July 29, 1993).

Unión Progresista de Fiscales de España et al. v. Pinochet. (Spain.) Central Investigating Tribunal No. 5, Audiencia Nacional (October 16 and 18, November 3, 1998); Criminal Division, Plenary Session, Audiencia Nacional (November 5, 1998).

Menchú Tum et al. v. Montt et al. (Guatemala.) Criminal Division, Plenary Session, Audiencia Nacional (December 13, 2000); Criminal Division, Supreme Court (February 25, 2003).

Military Prosecutor v. Niyonteze. (Switzerland.) Trial judgment, Military Tribunal, Division 2, Lausanne (April 30, 1999); Appeals judgment, Appeals Military Court 1A, Geneva (May 26, 2000); Cassation judgment, Military Court of Cassation (April 27, 2001).

Austria

One of the first trials for genocide anywhere in the world was held in Austria. Public Prosecutor v Cvjetkovic arose out of the war and ethnic violence in the former Yugoslavia that occurred during the first half of the 1990s, which caused an influx of thousands of refugees, including Cvjetkovic, into Austria. According to the indictment, the accused, as military commander, was responsible for the ethnic cleansing of the Muslim section of the village of Kucice. He was charged with genocide and complicity in genocide. A jury acquitted him.

The genocide charges were brought under Sections 321 and 65(1), subparagraph 2, of the Austrian penal code. The former makes genocide a criminal offense; the latter provides that offenses committed abroad shall be punished in Austria "if the offender, though he was a foreigner at the time when he committed the offense, was found in this country and if, due to reasons different from the nature and characteristics of the offense, is not extradited to a foreign State." The foreign authorities were notified but did not respond, and the International Criminal Tribunal for the Former Yugoslavia (ICTY) declined to take over the proceedings.

Belgium

After years of controversy Belgium repealed in 2003 its Act Concerning Grave Breaches of International Humanitarian Law, which made the core international crimes punishable in Belgium, even when the offense had no direct connection to Belgium. In other words, formal prosecutions were possible even though the crime was committed outside of Belgium by someone of another nationality, none of the victims were Belgian, and the accused did not reside in Belgium. Application of this law to the actions of foreign officials led to several serious diplomatic incidents and litigation before the International Court of Justice (ICJ) (e.g., Democratic Republic of the Congo v. Belgium, April 2000, holding that an incumbent minister of foreign affairs is immune from criminal jurisdiction of other states).

The repeal of the act does not mean, however, that the core crimes, even when committed abroad, can no longer be prosecuted in Belgium. Indeed, while repealing the law, the legislator simultaneously introduced most of the act's substantive provisions into the criminal code (Article 136, bis–octies), while amendments to the code of criminal procedure establish the extraterritorial jurisdiction of Belgian courts, provided there is some connection with Belgium.

One successful prosecution occurred under the repealed act. Public Prosecutor v. the "Butare Four" arose out of the genocide against the Tutsi and the massacres of moderate Hutu in Rwanda during the armed conflict between government armed forces and a rebel army in 1994. The accused were among hundreds of Rwandans from both sides of the conflict who fled to Belgium. They were charged with war crimes, not crimes against humanity or genocide, most likely to avoid a possibly controversial retroactive application of the Act Concerning Grave Breaches of International Humanitarian Law, which back in 1994 did not include these offenses.

Canada

Canada was among the first countries to consolidate and harmonize its legislation regarding the core international crimes following ratification of the ICC Statute. Prosecutions in the early 1990s of alleged foreign war criminals (under repealed legislation) had all failed (e.g., Regina v. Finta). The Canadian government then proceeded with administrative procedures, especially denaturalization and deportation. Among the most well-known deportation cases are Sivakumar v. Canada (involving crimes against humanity committed by the Liberation Tigers of Tamil Eelam in Sri Lanka) and Mugesera v. Minister of Citizenship and Immigration (involving genocide against the Tutsi in Rwanda).

The 2000 Crimes against Humanity and War Crimes Act incorporates the provisions of the ICC Statute into Canadian legislation. Its twofold objective is to allow full cooperation with the ICC in matters of investigation and prosecution, and to increase national capacity and punish alleged perpetrators of genocide, crimes against humanity, and war crimes. Prosecution of extraterritorial offenses under the act always requires a link with Canada.

East Timor and Indonesia

After the people of East Timor voted in a UN-administered referendum for independence from Indonesia, the Indonesian National Army and Timorese militias launched a campaign of murder, arson, and forced expulsion (in September 1999). A UN commission of inquiry called for the establishment of an international tribunal.

Indonesia successfully staved off such a tribunal by promising to prosecute those responsible for the atrocities. To this end it created an ad hoc court with jurisdiction over genocide and crimes against humanity (Law No. 26/2000 on the Human Rights Court and Presidential Decree No. 53/2001). As of 2003, seventeen individuals, mostly senior civilian, police, and military officials, have been tried meanwhile in Jakarta for crimes against humanity. Twelve defendants were acquitted; five received prison sentences between three and ten years.

In East Timor a procedure was also created to prosecute Indonesians and Timorese responsible for the 1999 violence. The UN Transitional Administration in East Timor (UNTAET) created the Serious Crimes Investigative Unit, with an international staff, to investigate and prosecute crimes against humanity and other serious offenses before Special Panels for Serious Crimes of the newly created Dili District Court (UNTAET Regulation No. 15/2000). The trials before the Special Panels, which are composed of both Timorese and international judges, were still ongoing in late 2003. Dozens have been sentenced to prison terms ranging from eleven months to thirty-three years. Indonesia has refused to extradite any Indonesian for trial in East Timor.

Ethiopia

Ethiopia took part in the negotiations that led to the adoption of the Genocide Convention in 1948; it was the first nation to ratify the Convention on July 1, 1949. Its penal code of 1957 incorporates genocide and crimes against humanity in Article 281. However, in addition to the groups named in the Genocide Convention—national, ethnic, racial, or religious groups—Article 281 includes political groups.

These provisions have been the basis for the prosecution of the Dergue regime (1974–1991), infamous for its campaign of "Red Terror." After the overthrow of the Dergue, a Special Prosecutor's Office was established to investigate Dergue crimes and prosecute those responsible. Thousands were arrested and charged with genocide and war crimes.

Trials began in 1994. By mid-2004 only a fraction of the accused have been tried. Just over 1,500 decisions have been handed down, with 1,017 convictions. Some 6,000 defendants are still awaiting trial. Colonel Mengistu Haile Mariam, the Dergue leader, is being tried in absentia. He lives in exile in Zimbabwe.

France

Before March 1, 1994, crimes against humanity were incorporated in the French legal system by reference to the Nuremberg Principles (December 26, 1964). However, French case law restricted crimes against humanity to crimes committed within the context of World War II by or on behalf of the Axis powers, thus excluding possible French crimes during World War II, the Algerian War, and French operations in Indochina. In 1987 French courts convicted Klaus Barbie, the head of Gestapo in Lyon during the wartime occupation of France, as well as Vichy collaborators Paul Touvier (in 1994) and Maurice Papon (in 1998), of crimes against humanity for their activities during Word War II.

The penal code in force since March 1, 1994, includes crimes against humanity (Article 212-1) and genocide (Article 211-1). French courts are vested with extraterritorial jurisdiction, provided either the perpetrator or victim is a French national.

Following the establishment of the ICTY and ICTR, the French parliament adopted special cooperation laws that provide for French jurisdiction over all offenses falling within the competence of both tribunals, if the perpetrators are found in France. Despite credible information regarding the presence of Rwandan génocidaires in France, no prosecution of these individuals has so far taken place.

Germany

Germany is another country that has consolidated and harmonized its legislation regarding the core international crimes following ratification of the ICC Statute. To align domestic law with the ICC Statute, Germany has opted for a unique solution: a national Code of Crimes Against International Law (Völkerstrafgesetzbuch) that makes the core ICC crimes offenses under domestic law, "even when the offense was committed abroad and bears no relation to Germany" (Article 1).

Prior to the Code of Crimes Against International Law's enactment, genocide was an offense under Section 6(1) of the ordinary penal code, regardless of the place of commission. On the basis of the repealed provision, four Bosnian Serbs (all at some point German residents) have been tried in Germany for their role in the ethnic cleansing that characterized the armed conflict in the former Yugoslavia during the first half of the 1990s. One of the defendants was acquitted of genocide because it was found that he lacked the necessary mens rea (or intent).

Iraq

After the overthrow of the Baathist regime by the United States and its allies, the Iraqi Governing Council established the Iraqi Special Tribunal for Crimes Against Humanity in December 2003. The tribunal has jurisdiction over Iraqi nationals or residents accused of genocide, crimes against humanity, war crimes, and violations of certain Iraqi laws, committed between July 1968 and May 2003, in Iraq or elsewhere. The tribunal's statute specifies its jurisdiction over crimes committed against the people of Iraq, "including its Arabs, Kurds, Turcomans, Assyrians and other ethnic groups, and its Shi'ites and Sunnis, whether or not committed in armed conflict" (Article 1b).

It is expected that the some of the captured Baath Party leaders, including former President Saddam Hussein, will be tried before the Special Tribunal.

Israel

As the new homeland of many Holocaust survivors, Israel was one of the first countries to enact legislation criminalizing serious violations of international humanitarian law. The Nazi and Nazi Collaborators (Punishment) Law of 1950 applies retroactively to certain offenses committed "in an enemy country" during the period of the Nazi regime or World War II. The principal offenses under the law are "crimes against the Jewish people", crimes against humanity, and war crimes (Article 1). The Crime of Genocide (Prevention and Punishment) Law of 1950 implements the Genocide Convention, granting universal jurisdiction to Israeli courts (Article 5).

Two foreigners as well as some Israeli citizens (former Jewish collaborators or Kapos) have been prosecuted under the Nazi and Nazi Collaborators (Punishment) Law for their role in the Holocaust. The most famous trials were those of Adolf Eichmann (in 1961) and John Demjanjuk (in 1987). Eichmann, the director of the Office of Jewish Affairs and Evacuation Affairs in the Third Reich, was abducted from Argentina by members of the Israel Secret Service. He was tried and sentenced to death for coordinating the Final Solution. Demjanjuk was accused of being Ivan the Terrible, the individual responsible for operating the gas chambers at the Treblinka death camp in Poland. His conviction was later overturned by the Israeli Supreme Court.

Rwanda

More than 100,000 individuals have been arrested on charges of participation in the 1994 genocide and massacres in the African nation of Rwanda. A special retroactive statute, Organic Law 8196 (Loi organique No. 8196 du 30/8/96 sur l'organisation des poursuites des infractions constitutives du crime de génocide ou de crimes contre l'humanité, commises à partir du 1er Octobre 1990) is the basis for their prosecution. The law classifies the perpetrators into four groups based on their degree of participation. For the first category of offenders (planners, organizers, instigators, supervisors, and zealots), the law mandates the death penalty. Note that the ICTR, which has primary jurisdiction, cannot impose the death penalty.

By 2001 fewer then five thousand suspects had been tried. To increase trial capacity, the government decided to resort to a customary institution, the gacaca. This system of participatory justice brings together all protagonists at the actual location of the crime, that is, the survivors, witnesses, and presumed perpetrators. All are asked to participate in a discussion of what happened in order to establish the truth, draw up a list of victims, and identify the guilty. These "debates" are chaired by nonprofessional judges elected from the men of the community who are deemed to have the most integrity. Suspects falling under the first category (estimated to be between three and ten thousand in number) will continue to be judged by the ordinary courts. For all other cases, the government has created approximately eleven thousand gacaca courts. They began their deliberations in 2002.

Spain

Genocide is an offense under Article 607 of the Spanish criminal code. Article 23.4(a) of the Organic Law of the Judicial Power (Ley Orgánica del Poder Judicial) provides that "Spanish courts have jurisdiction over acts [of genocide] committed abroad by Spaniards and foreigners." These provisions were the bases for criminal proceedings in Spain against former Chilean president Augustus Pinochet and former Guatemalan ruler General Efraín Ríos Montt. The characterization of the Pinochet regime's brutal repression of political opponents as genocide is questionable. The charges against Ríos Montt included acts of genocide committed against groups of Maya between 1981 and 1983 by Guatemalan state agents.

Neither of these cases ever went to trial. Pinochet, after his arrested in the United Kingdom at the request of Spain, was allowed to return to Chile on medical grounds. The proceedings against Ríos Montt came to an end when the Spanish Supreme Court held that "no particular State is in the position to unilaterally establish order, through resort to criminal law, against anyone and in the entire world, without their being some point of connection that renders legitimate the extension of extraterritorial jurisdiction."

Switzerland

To implement the Genocide Convention and take the "first step in the adaptation of Swiss law to the ICC Statute," Switzerland added Title 12bis to its penal code. As of 2003 Title 12bis only addresses genocide (Article 264), but it is expected that in a second phase the Swiss legislature will introduce the notion of crimes against humanity and possibly also revise the existing war crimes legislation.

In 1999 a Swiss tribunal successfully tried and convicted a Rwandan refugee for war crimes (Military Prosecutor v. Niyonteze). The prosecution also had charged the same defendant, the former mayor of Mushubati, with genocide and crimes against humanity for his role in the genocide against the Tutsi and massacres of moderate Hutu in Rwanda in 1994. For these counts the prosecution relied on customary international law, but the tribunal held that the notions of genocide and crimes against humanity under customary international law were not directly applicable in the Swiss legal system.

Former Yugoslavia

The conflicts in the former Yugoslavia in the 1990s will forever be associated with the practice of ethnic cleansing. However, few prosecutions for genocide have occurred in the various entities that comprised the former Yugoslavia, and this despite the fact that there were no legal hurdles, given that the crime of genocide had been defined and a punishment established pursuant to Article 141 of Yugoslavia's Criminal Law, which was in force when the conflict began (Schabas, 2003). As it turns out, more trials have taken place in third-party states (see the above sections on Austria and Germany) than in the former Yugoslavia.

The District Military Court of Bosnia and Herzegovina, sitting in Sarajevo in 1993, convicted two defendants of genocide. A second trial reportedly took place in 1997 before the Osijek District Court in Croatia. The defendant there was sentenced to five years imprisonment for genocide pursuant to Article 119 of the Basic Criminal Law of the Republic of Croatia. In 2001 the Supreme Court of Kosovo reversed a genocide conviction by the District Court of Mitrovica on the grounds that

The exactions committed by the Milosevic's [sic] regime in 1999 cannot be qualified as criminal acts of genocide, since their purpose was not the destruction of the Albanian ethnic group in whole or in part, but its forceful departure from Kosovo as a result of [sic] systematic campaign of terror including murders, rapes, arsons and severe maltreatments (Schabas, 2003, p. 56).

Conclusion

World War II–related cases aside, domestic prosecutions of the core international crimes are a recent phenomenon. In the wake of the creation of the ICTR, ICTY, and ICC, and spurred by a powerful international human rights movement, national authorities have started to take the issue more seriously by considering measures such as the adoption or review of relevant laws, the training of law enforcement officials, and the establishment of special investigative units or tribunals. The list of countries and cases is likely to grow in the years to come.

SEE ALSO Barbie, Klaus; Bosnia and Herzegovina; Demjanjuk Trial; East Timor; Eichmann Trials; Ethiopia; Geneva Conventions on the Protection of Victims of War; Immunity; National Prosecutions; Pinochet, Augusto; Punishment; Ríos Montt, Efraín; Rwanda; Truth Commissions; Universal Jurisdiction

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Luc Reydams