15 December, 2013

Crimes against humanity: jus cogens, non-derogable and no statute of limitation

I worked on the report on the civil conflict in Nepal with a team of researchers at the Office of the High Commissioner for Human Rights in Kathmandu in 2010.  

Working on this report, and working on issues of access to justice during 2004, the height of Nepal’s civil conflict, made me interested in issues of crimes against humanity. What constitutes a crime against humanity?

According to www.crimesofwar.org:

In 1945, the United States and other Allies developed the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Charter of the International Military Tribunal (IMT), sitting at Nuremberg, which contained the following definition of crimes against humanity in Article 6(c):
“Crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations, 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.”

Despite differing definitions of crimes of war, the website says:
(1) they refer to specific acts of violence against persons irrespective of whether the person is a national or non-national and irrespective of whether these acts are committed in time of war or time of peace, and (2) these acts must be the product of persecution against an identifiable group of persons irrespective of the make-up of that group or the purpose of the persecution. Such a policy can also be manifested by the “widespread or systematic” conduct of the perpetrators, which results in the commission of the specific crimes contained in the definition.  
See more at: http://www.crimesofwar.org/a-z-guide/crimes-against-humanity/#sthash.piM7ay1y.dpuf

More on jus cogens and non-derogable rule of international laws:

But crimes against humanity are also deemed to be part of jus cogens—the highest standing in international legal norms. Thus, they constitute a non-derogable rule of international law. The implication of this standing is that they are subject to universal jurisdiction, meaning that all States can exercise their jurisdiction in prosecuting a perpetrator irrespective of where the crime was committed. It also means that all States have the duty to prosecute or extradite, that no person charged with that crime can claim the “political offense exception” to extradition, and that States have the duty to assist each other in securing evidence needed to prosecute. But of greater importance is the fact that no perpetrator can claim the “defense of obedience to superior orders” and that no statute of limitation contained in the laws of any State can apply.

And here’s the clincher:
Lastly, no one is immune from prosecution for such crimes, even a head of State.

The International Criminal Court prosecutes crimes against humanity. 

According to its website:

The International Criminal Court (ICC) is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes. The ICC is based on a treaty, joined by 122 countries (effective as of 1 May 2013).
The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility. In addition, the ICC only tries those accused of the gravest crimes.

And its definition of crimes against humanity is:

What are crimes against humanity?
“Crimes against humanity” include any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
  • murder;
  • extermination;
  • enslavement;
  • deportation or forcible transfer of population;
  • imprisonment;
  • torture;
  • rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
  • persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds;
  • enforced disappearance of persons;
  • the crime of apartheid;
  • other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury.
In many instances, it is about “connecting the dots” on large scale persecution of human beings that may be occurring right under our eyes. The evidence is already out there. The Nazis, for instance, started their death camps as early as 1938. The camps came to an end only in 1945. Why were these horrors allowed to go on for so long, despite evidence? Why did it take so long for the camps to come to an end?

In part, it was because Hitler commanded near total control over the apparatus of propaganda, which made it impossible for the Germans to question his authority. In part, it appears because the reality of the Holocaust was questioned and witnesses not believed--despite great evidence, it took a long time for people even within Germany  to acknowledge these horrors were occurring in their country.   

We flatter ourselves that the 21st century is somehow “Hitler-proof”—our institutions of media strong and free, and our world so diverse something like this would never occur again. But is this in fact the reality—or could something like the Holocaust (mass persecution of human beings, mental and physical suffering, extermination) occur in a “widespread or systematic” manner—with victims disbelieved for their testimonies?

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