Dossier for Preliminary Indictment of SPDC Generals with Genocide

If we combine the gist of International Laws, rules and regulations that I have compiled with the documents or records of the following reputable reports from: 

1.
US States Department 

2. Human Rights Watch and 

3. Amnesty International, viz: 

Burma, Country Reports on Human Rights Practices – 2005 

Released by the Bureau of Democracy, Human Rights, and Labor, Department of States, United States of America, March 8, 2006 at: http://www.state.gov/g/drl/rls/hrrpt/2005/61603.htm and 

Burma, International Religious Freedom Report 2005 

Released by the Bureau of Democracy, Human Rights, and Labor at Department of States
United States of America at: 

http://www.state.gov/g/drl/rls/irf/2005/51506.htm and 

Burma, Human Rights overview by Human Rights Watch at: 

http://hrw.org/english/docs/2005/01/13/burma9826.htm and 

Myanmar: Covering events from January – December 2004 by Amnesty International at: 

http://web.amnesty.org/report2005/mmr-summary-eng and 

I strongly believe that there are more than enough evidences for Indictment of SPDC Generals with Genocide and Crimes against Humanity. 

We just need to push international community to start a trial of these SPDC leaders, cohorts and supporters. Even if we could obtain the International Warrants of Arrest for the SPDC Generals, their mobility would be restricted and they may even scared of venturing into the International Air space on the way to their friendly countries. 

And it may be a major moral boost for all of us fighting for democracy and may be a very severe blow morally and physically to SPDC Generals and their soothers, ASEAN,
Thailand,
China,
India,
Russia, and North Korea etc. 

But those above mentioned pacifiers are actually propping up and defending the SPDC for their own selfish greedy desire to continue exploit profits from Myanmar/Burma. And they would definitely try to block the action of
UN, USA,
UK, EU and all of us to prosecute the SPDC Generals. 

What is the Defination of Genocide? 

Any of the following acts committed with an intent to destroy, in whole or in part on: 

(i) a national 

(ii) ethnic group 

(iii) race 

(iv) religious group 

SPDC is doing this on all the above groups or categories eg: 

all the people of Myanmar/Burma. 

all the Ethnic Minorities eg Mon, Shans, Chins, Kachin, Karens, Rakhines etc 

NLD and all the opposition parties open 

Muslims, Burmese Muslims, Christians and even Buddhists 

Defined by who? 

Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) 

What acts? 

Any of the following acts committed: 

(i) Killing members of the group. Causing serious bodily or mental harm to members of the group 

(ii) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 

(iii) Imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group. 

(SPDC is known for: 

killings members of the group, extrajudicial and in the jails. 

physical destructions, of houses, religious places, villages etc 

Causing serious bodily or mental harm to members of the group 

rape 

tortures 

jailings 

imposing restricted movements 

preventing or disturbing their daily struggle for a livelyhood 

daily alteration of orders or laws to restrict or disturb the daily activities etc 

Denying of all the Basic Human Rights to all its citizens. 

of all the groups in opposition, NLD, Ethnic Minorities, Minority Religious groups.) 

Who invented or start to use the word? 

The term “genocide” was coined by Raphael Lemkin (1900–1959). 

What is the literal meaning of Genocide? 

genos = family, tribe or race (Greek) 

cide occidere= to massacre(Latin) 

Explanation the word Genocide. 

It is intended rather to signify a coordinated plan of different actions 

aiming at the destruction of essential foundations of the life of human groups, with the aim of annihilating the groups themselves. (SPDC have being continuously using this term, annihilating, in their signboards and billboards) 

(i) The objectives of such a plan would be the disintegration of 

the political and (SPDC is doing this on NLD and all the opposition 

parties openly) 

(ii) social institutions, of culture, language, national feelings, (SPDC is doing this on Mon, Shans, Chins, Kachin, Karens, Rakhines and almost all the Ethnic Minorities) 

(iii) religion. SPDC is committing this on especially on: 

Muslims, Burmese Muslims especially on Rohingya Rakhine Muslims and 

Christians: especially Karens, Chins and all other Christians in
Myanmar 

Buddhist Monks in the opposition or Monks refused the SPDC Generals donation were derobed, jailed and tortured. 

(iv) and the economic existence of national groups (SPDC is committing this on all the people of Myanmar/Burma.) 

(v) And SPDC is openly doing all what they could for the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to all the above groups. 

(vi) it was broad at the same time as it included not only physical genocide, but also acts aimed at destroying the culture and livelihood of the group. 

Convention on the Prevention and Punishment of the Crime of Genocide was accepted Universally since 1948 as an International Law. 

To sum up the above, Official Definition of Genocide is as follows: 

The CPPCG was adopted by the UN General Assembly on 9 December 1948 and came into effect on 12 January 1951 (Resolution 260 (III)). It contains an internationally recognized definition of genocide which was incorporated into the national criminal legislation of many countries, and was also adopted by the Rome Statute of the International Criminal Court, the treaty that established the International Criminal Court (ICC). 

The first draft of the Convention included political killings: the actions against groups identified as holding similar political opinion or social status. (
USSR opposed this) 

But the proper definition of the word “genocide” should not have any exclusion of social and political groups as targets of genocide. As most of the Genocide committed so far is the deliberate destruction of a social and political identity. 

The international law on the crime of genocide begin to be enforced in the 1990s. 

R.J. Rummel’s definition of Genocide. 

The ordinary meaning is murder by government (eg SPDC of Myanmar) of its own. 

The legal meaning of genocide refers to the international treaty, the Convention on the Prevention and Punishment of the Crime of Genocide. 

***This also includes nonkillings that in the end eliminate the group, such as preventing births or forcibly transferring children out of the group to another group. 

A generalized meaning of genocide also includes government (SPDC Generals) killings of political opponents or otherwise intentional murder 

International prosecution of genocide 

All signatories to the CPPCG are required to prevent and punish acts of genocide, 

International Court of Justice 

Genocide has been illegal under customary international law as under conventional international law. International criminal courts and tribunals function primarily because the states involved are incapable or unwilling to prosecute crimes of this magnitude themselves. 

Acts of genocide are generally difficult to establish, for prosecution, because it is sometimes difficult to prove: intent and demonstrating a chain of accountability 

To date all international prosecutions for genocide have been brought in specially convened international tribunals. 

Since 2002, the International Criminal Court can exercise its jurisdiction if national courts are unwilling or unable to investigate or prosecute genocide, 

ICC is a “court of last resort,” leaving the primary responsibility to exercise jurisdiction over alleged criminals to individual states. 

Nuremberg Trials 

Trials of Nazis involved in World War II and the Holocaust. The trials were held in the German city of
Nuremberg from 1945 to 1949 at the Nuremberg Palace of Justice . 

The first trials was the Trial of the Major War Criminals Before the International Military Tribunal or IMT, which tried 24 of the most important captured (or still believed to be alive) leaders of Nazi Germany. 

Belgium 

In 1993
Belgium had adopted universal jurisdiction , allowing prosecution of genocide, committed by anybody in the world. In 2003,
Belgium repealed the law on universal jurisdiction. However, some cases which had already started continued. 

Genocide in history 

Genocide appears to be a regular and widespread event in the history of civilization. The phrase “never again” often used in relation to genocide has been contradicted up to the present day. 

Determining which historical events constitute genocide and which are merely criminal or inhuman behavior is not a clear-cut matter. Furthermore, in nearly every case where accusations of genocide have circulated, partisans of various sides have fiercely disputed the interpretation and details of the event, often to the point of promoting wildly different versions of the facts. An accusation of genocide is certainly not taken lightly and will almost always be controversial. 

Stages of genocide and efforts to prevent it 

According to President of Genocide Watch, Gregory Stanton, genocide develops in eight stages that are “predictable but not inexorable”. The FBI has found somewhat similar stages for hate groups. 

Genocide is a process that develops in eight stages that are predictable but not inexorable. At each stage, preventive measures can stop it. The later stages must be preceded by the earlier stages, though earlier stages continue to operate throughout the process. 

Stage Characteristics Preventive measures 

1. 

Classification People are divided into “us and them” by ethnicity, race, religion, or nationality: 

Myanmar Military divided all the people of
Myanmar as Military/ex-Military/Family and relatives of Military. 

Vs 

Non Military ordinary people. 

Myanmar Military labeled: Muslims as Kala/Kala Dain, Mi Masit Pha Masit (Bustards). 

Myanmar Chinese and Myanmar Muslim as Mixed blooded/guest citizens/not loyal to the country/ illegal immigrants etc. 

Rohingya Rakhine Muslims as illegal immigrants fro Bengladesh. 

NLD and all the opposition members as traitors, servants of Western colonists. 

Daw Aung San Suu Kyi as untrustworthy Myanmar Military labeled Muslims as , foreigner’s wife, agent of colonists etc 

Karen, Mon, Shan, Kachin and Ethnic Minorities as rebels, separationists, those who want to divide the country etc The main preventive measure at this early stage is to develop universalistic institutions that transcend… divisions, and that actively promote tolerance and understanding, and that promote classifications that transcend the divisions. 

2. 

Symbolization “When combined with hatred, symbols may be forced upon unwilling members of pariah groups…” 

NLD, Opposition, Rebels, Ethnic Minorities as Non Bama, Muslims, Christians, Chinese, even Daw Aung San Suu Kyi and Kha Maut is symbolized for hatred and annihilation. “To combat symbolization, hate symbols can be legally forbidden… as can hate speech”. 3. 

Dehumanization “Dehumanization overcomes the normal human revulsion against murder.” 

Rape, torture, porter, forced labour, imprisonment on trumpeted charges, forced recruitment of child soldiers etc by SPDC 

One group denies the humanity of the other group. Members of it are equated with animals, vermin, insects or diseases. Dehumanization overcomes the normal human revulsion against murder. 

At this stage, hate propaganda in print and on hate radios is used to vilify the victim group. In combating this dehumanization, incitement to genocide should not be confused with protected speech. Genocidal societies lack constitutional protection for countervailing speech, and should be treated differently than in democracies. Hate radio stations should be shut down, and hate propaganda banned. Hate crimes and atrocities should be promptly punished. “Hate propaganda should be banned, hate crimes and atrocities should be promptly punished.” 

4. 

Organization “Genocide is always organized, usually by the state, though sometimes informally. Special army units or militias are often trained and armed…” or by terrorist groups. Special army units or militias are often trained and armed. Plans are made for genocidal killings. 

Myanmar Military, MI, BSI, Kyant Phut etc “To combat this stage, membership in these militias should be outlawed.” To combat this stage, membership in these militias should be outlawed. Their leaders should be denied visas for foreign travel. The U.N. should impose arms embargoes on governments and relatives of Myanmar Military, MI, BSI, Kyant Phut etc 

5. 

Polarization “Hate groups broadcast polarizing propaganda…” Bill boards around the country, Government various media, pamphlets speeches of SPDC 

Extremists drive the groups apart. Laws may forbid intermarriage or social interaction. Extremist terrorism targets moderates, intimidating and silencing the center “Prevention may mean security protection for moderate leaders or assistance to human rights groups…” 

Assets of extremists may be seized, and visas for international travel denied to them. Coups de’tat by extremists should be opposed by international sanctions. 

6. 

Identification “Victims are identified and separated out because of their ethnic or religious identity…” This is very obvious with the SPDC. 

Death lists are drawn up. Members of victim groups are forced to wear identifying symbols. They are often segregated into ghettoes, forced into concentration camps, or confined to a famine-struck region and starved. 

“At this stage, a Genocide Alert must be called…” If the political will of the
U.S., NATO, and the U.N. Security Council can be mobilized, armed international intervention should be prepared or heavy assistance to the victim group in preparing for its self-defense. Otherwise, at least humanitarian assistance should be organized by the U.N. and private relief groups for the inevitable tide of refugees. 

7. 

Extermination “It is “extermination” to the killers because they do not believe their victims to be fully human.” 

Extermination begins, and quickly becomes the mass killing legally called “genocide.” 

When it is sponsored by the state, the armed forces often work with militias to do the killing. Sometimes the genocide results in revenge killings by groups against each other, creating the downward whirlpool-like cycle of bilateral genocide (as in
Burundi). 

The whole Myanmar/Burma is used as killing field. Even on the streets in the daylight they had shoot to kill the thousand of demonstrators including students. This was after the open threat or warning by their Supreme leader General Ne Win in his farewell speech. “At this stage, only rapid and overwhelming armed intervention can stop genocide. Real safe areas or refugee escape corridors should be established with heavily armed international protection.” 

The U.N. needs a Standing High Readiness Brigade or a permanent rapid reaction force, to intervene quickly when the U.N. Security Council calls it. For larger interventions, a multilateral force authorized by the U.N., led by NATO or a regional military power, should intervene. If the U.N. will not intervene directly, militarily powerful nations should provide the airlift, equipment, and financial means necessary for regional states to intervene with U.N. authorization. It is time to recognize that the law of humanitarian intervention transcends the interests of nation-states. 

8. 

Denial “The perpetrators… deny that they committed any crimes…” Asked any SPDC Generals, Myanmar Military they are willing to confirm and prove this fact of truth! 

Denial is the eighth stage that always follows genocide. It is among the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims. They block investigations of the crimes, and continue to govern until driven from power by force, when they flee into exile. There they remain with impunity, like Pol Pot or Idi Amin, unless they are captured and a tribunal is established to try them. “The response to denial is punishment by an international tribunal or national courts.” 

There the evidence can be heard, and the perpetrators punished. Tribunals like the Yugoslav,
Rwanda, or Sierra Leone Tribunals, an international tribunal to try the Khmer Rouge in
Cambodia, and ultimately the International Criminal Court must be created. They may not deter the worst genocidal killers. But with the political will to arrest and prosecute them, some mass murderers may be brought to justice. 

Crime against humanity 

A crime against humanity is a term in international law that refers to 

acts of murderous persecution against a body of people 

as being the criminal offence above all others. 

as acts so grave, on a scale so large, that their very execution diminishes the human race as a whole. 

The London Charter of the International Military Tribunal was the decree that set down the laws and procedures. 

Crimes Against Humanity: namely, 

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. 

In the Judgment of the International Military Tribunal for the Trial of German Major War Criminals it was stated: 

…… war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity. 

The systematic persecution of African people by the South African apartheid government was recognized as a crime against humanity by the United Nations in 1976. 

In 2002, the International Criminal Court (ICC) was established in
The Hague (
Netherlands), following the principle of universal jurisdiction. The “Rome Statute” provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. The treaty stated that: 

“Crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. 

(a) Murder; 

(b) Extermination; 

(c) Enslavement; 

(d) Deportation or forcible transfer of population; 

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; 

(f) Torture; 

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; 

(h) 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; 

(i) Enforced disappearance of persons; 

(j) The crime of apartheid; 

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 

GENOCIDE IS A CRIME UNDER INTERNATIONAL LAW regardless of 

“Whether committed in time of peace or in time of war” 

Irrespective of the context in which it occurs for example: 

peace time, 

internal strife, 

international armed conflict or 

whatever the general overall situation 

Genocide is a punishable international crime. 

The acts specified in the Convention must be: 

“Committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” 

1. The extent of destruction of a group 

Destruction of a group in whole or in part does not mean that the group in its entirety must be exterminated. 

The words “in whole or in part” were inserted in the text to make it clear that it is not necessary to aim at killing all the members of the group. (So SPDC could be charged accordingly.) 

If essentially the total leadership of a group is targeted, it could also amount to genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others – 

(Daw Aung San Suu Kyi and NLD leaders’ arrest, U Khun Htun Oo and Shan leaders arrested are included in the definition of Genocide.) 

the totality per se may be a strong indication of genocide regardless of the actual numbers killed. A corroborating argument will be the fate of the rest of the group. The character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group. 

If a group has its leadership exterminated, and at the same time or in the wake of that, has a relatively large number of the members of the group killed or subjected to other heinous acts, for example deported on a large scale or forced to flee, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the 

Thus, the intent to destroy the fabric of a society through the extermination of its leadership, when accompanied by other acts of elimination of a segment of society, can also be deemed genocide. 

2. The groups protected 

National, ethnical, racial or religious groups are all protected. 

It is not a condition that the victim group be a minority, it might as well be a numerical majority. 

If there are several or more than one victim groups, and each group as such is protected, it may be within the spirit and purpose of the Convention to consider all the victim groups as a larger entity. The case being, for example, that there is evidence that group A ( Here Myanmar SPDC ) wants to destroy in whole or in part groups B, C and D, or rather everyone who does not belong to the national, ethnic, racial or religious group A. In a sense, group A has defined a pluralistic non-A group (=Non Myanmar Military) using national, ethnic, racial and religious criteria for the definition. It seems relevant to analyze the fate of the non-A group along similar lines as if the non-A group had been homogenous. 

Genocide, “an odious scourge” which the Convention intends “to liberate mankind from” (preamble), would as a legal concept be a weak or even useless instrument if the overall circumstances of mixed groups were not covered. The core of this reasoning is that in one-against-everyone-else cases the question of a significant number or a significant section of the group must be answered with reference to all the target groups as a larger whole. 

3. Intent 

It is the element of intent to destroy a designated group in whole or in part, which makes crimes of mass murder and crimes against humanity qualify as genocide. 

To be genocide within the meaning of the Convention, the crimes against a number of individuals must be directed at their collectivity or at them in their collective character or capacity. (SPDC and Kyant Phut’s attack on Daw Suu, NLD, U Khun Tun Oo and Shan leaders may qualify for this. 

Motive and intent may be closely linked, but motive is not mentioned in the Convention. The necessary element of intent may be inferred from sufficient facts. 

In certain cases, there will be evidence of actions or omissions of such a degree that the defendant may reasonably be assumed to have been aware of the consequences of his or her conduct, which goes to the establishment of intent, but not necessarily motive. 

4. Acts constituting the crime of genocide 

The different acts constituting the crime of genocide are enumerated in article II of the Convention. Such acts are: 

•        “killing members of a national, ethnical, racial or religious group, 

•        causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, 

•        imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group”. 

Each of these categories of acts can constitute the crime of genocide, as could any combination of these acts. 

5. Punishable acts 

Article III of the Convention lists the punishable acts as being: 

genocide, 

conspiracy to commit genocide, 

direct or public incitement to commit genocide, 

attempt to commit genocide and complicity in genocide. 

This enumeration indicates how far the crime needs to have advanced before it becomes punishable. For example, 

an attempt will suffice. 

Secondly, it describes what kind of involvement in actual genocide may result in penal responsibility under the Convention. 

Thus, criminal responsibility extends to those involved in incitement, conspiracy and attempt, 

as well as individuals actually executing the specific acts prohibited by the Convention. 

Political masterminds or propaganda people are no less responsible than the individuals who perform the actual carnage. 

There are, therefore, several legal bases for criminal responsibility of individuals who engage in or are part of the various aspects of genocide. 

6. Culpability 

It is explicitly stated in the Convention that people who have committed genocide shall be punished 

whether they are 

“constitutionally responsible rulers, 

public officials or private individuals” (art. IV). 

Public officials include both civilian and military personnel and everyone who holds (or held) a public office – be it legislative, administrative or judicial. 

To meet the aims of the Convention, people in the said categories must be treated equally irrespective of their de jure or 

de facto positions as decision-makers. 

As individuals, they are subject to prosecution like any other individual violator. 

They cannot hide behind any shield of immunity. 

The legal and moral responsibilities are the same and the need to prevent genocide no less clear because of the position of the violator. 

7. The statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 

Article 4 of the statute of the International Tribunal affirms the competence of the International Tribunal to prosecute persons committing genocide. The definition of genocide in article 4 of the statute is identical to the provisions of the Genocide Convention. 

J. Legal aspects of rape and other sexual assaults 

Rape constitutes a crime under international humanitarian law as well as under the criminal laws of the various republics.It is also part of the substantive applicable law of the statute of the International Tribunal where it is referred to in several articles. 

Unlike most codified penal laws in the world, in international humanitarian law rape is not precisely defined. But on the basis of the contemporary criminal laws of the world’s major criminal justice systems, 

the Commission considers rape to be a crime of violence of a sexual nature against the person. 

This characteristic of violence of a sexual nature also applies to other forms of sexual assault against women, men *18 and children, *19 when these activities are performed under coercion or threat of force and include sexual mutilation. *20 

It should be noted that irrespective of their definition, acts of sexual assault against women, men and children are prohibited by international humanitarian law through normative provisions prohibiting violence against the physical integrity and dignity of the person. Therefore, rape and other sexual assaults are covered in pari materia. 

Even though sexual assaults imply the commission of the crime by a given perpetrator, persons who do not perform the act but are indirectly involved in the commission of this crime, like decision-makers and superiors, 

are also responsible under the Genocide Convention (art. III) and general norms of command responsibility (see paras. 55 – 60). So SPDC Generals are responsible for the rapes committed by their soldiers. 

Violations of the laws and customs of war applicable to conflicts of an international character are contained in a number of international instruments. The Hague Convention (IV) Respecting the Laws and Customs of War on Land deals with the question of sexual assaults in article 46: “Family honour and rights, the lives of persons and private property, as well as religious convictions and practice, must be respected.” 

The Fourth Geneva Convention explicitly prohibits rape in article 27. The Commission deems that article 147 of the same Convention on “grave breaches” includes rape and other sexual assaults as constituting “torture or inhumane treatment” and that they are also prohibited because they are among those acts “willfully causing great suffering or serious injury to body or health”. 

Furthermore, Protocol I to the Geneva Conventions contains in article 76 an express prohibition of rape and other sexual assaults. In addition, such practices which are based on racial discrimination also constitute “grave breaches” under article 85, paragraph 4 of Protocol I, which holds that 

“inhuman and degrading practices involving outrage upon personal dignity, based on racial discrimination” are prohibited. 

It is also considered that article 27 of the Fourth Geneva Convention constitutes part of customary international law, thus also establishing a basis for universal jurisdiction. Furthermore, it should be noted with respect to Protocol I, that the provisions of article 85, when violated on the basis of racial discrimination, also constitute a violation of customary international law. 

Under all of these provisions, a single act of rape or sexual assault constitutes a war crime. As a “grave breach”, this type of violation falls under universal jurisdiction. 

The perpetrator, however, must be a person who is linked to one of the parties to the conflict and the victim must be linked to another party to the conflict or be a citizen of a neutral State. It is also held that article 76 of Protocol I is applicable to victims who are not protected by other provisions of the four Geneva Conventions. 

With respect to provisions applicable to conflicts of a non-international character, common article 3 to the four Geneva Conventions applies, as does article 4, paragraph 2 of Protocol II. 

Both of these provisions include a prohibition against rape and other sexual assaults in so far as they constitute wilful injury to the person. A single act is enough to constitute such a violation when the perpetrator is linked to one of the parties to the conflict and the victim is linked to another party to the conflict or is a citizen of a neutral State. (Good enough to prosecute SPDC Generals.) 

Under Protocol II, such prohibited acts constitute a violation when the conflict takes place “in the territory of a High Contracting Party between its armed forces and dissident forces or other organized 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” (art. 1, para. 1). 

Two other sources of international humanitarian law apply to the prohibition of sexual assault and rape irrespective of the nature and characterization of the conflict. They are the conventional and customary law of “crimes against humanity” and the Genocide Convention. 

With respect to crimes against humanity, sexual assaults and rape fall within the meaning of other inhumane acts. However, the prohibited conduct must be part of an overall policy of persecution based on ethnic or religious grounds against a civilian population. 

Under the Genocide Convention, sexual assault and rape are included within the meaning of article II of the Convention, provided that the prohibited conduct is committed as part of an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. 

Under both crimes against humanity and the Genocide Convention, such prohibited acts are subject to universal jurisdiction. It is also well-established that both of these sources of international humanitarian law are considered part of jus cogens and are, therefore, binding under customary international law. 

The parties to this conflict are bound by the four Geneva Conventions of 12 August 1949 and Additional Protocols I and II, both under State succession and by the parties’ specific accession thereto. The parties are also bound by the Genocide Convention under State succession in so far as that convention has been ratified by the former
Federal Republic of Yugoslavia. The parties are bound by that Convention under jus cogens and customary international law. The parties are also bound under jus cogens and customary international law by the obligations arising under crimes against humanity, as developed in conventional and customary international law. 

The Commission concludes that there is no doubt about the prohibition of rape and sexual assault in the Geneva Conventions and other applicable sources of international humanitarian law. Furthermore, the Commission finds that the relevant provisions of the statute of the International Tribunal adequately and correctly state the applicable law to this crime. 

The treaty law designed for internal armed conflicts is in common article 3 of the Geneva Conventions, Additional Protocol II of 1977, *8 and article 19 of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. *9 These legal sources do not use the terms “grave breaches” or “war crimes”. Further, the content of customary law applicable to internal armed conflict is debatable. 

As a result, in general, unless the parties to an internal armed conflict agree otherwise, the only offences committed in internal armed conflict for which universal jurisdiction exists are “crimes against humanity” and genocide, which apply irrespective of the conflicts’ classification. 

Grave breaches of the Geneva Conventions of 1949 and Protocols I and II 

“Grave breaches” are specified major violations of international humanitarian law which may be punished by any State on the basis of universal jurisdiction. 

Grave breaches are listed in article 50 of the First Geneva Convention (wounded and sick), article 51 of the Second Geneva Convention (maritime), article 130 of the Third Geneva Convention (prisoners of war), and article 147 of the Fourth Geneva Convention (civilians) of 1949. Grave breaches are also listed in articles 11, paragraph 4, and 85 of Additional Protocol I of 1977. The “grave breaches” provisions of the Geneva Conventions and Protocol I are only relevant during an international armed conflict. Common article 3 of the four Geneva Conventions and Additional Protocol II of 1977 are both applicable during internal armed conflicts, but neither of these documents makes any reference to grave breaches. 

Under all four Conventions, it prohibits; 

wilful killing, 

torture, 

rape or 

inhuman treatment of protected persons, including biological experiments, wilfully causing great suffering or serious injury to body or health, 

and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. 

Under article 85, paragraph 3, of Additional Protocol I, the following acts constitute grave breaches if committed wilfully, in violation of the relevant provisions of the Protocol, and causing death or serious injury to body or health: 

“(a) Making the civilian population or individual civilians the object of attack; 

“(b) Launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects …; 

Additional Protocol I also provides, in article 85, paragraph 4 that certain acts are grave breaches when committed wilfully and in violation of the Conventions or Protocol, namely: 

“(c) Practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination; 

“(d) Making the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, … the object of attack, causing as a result extensive destruction thereof, where there is no evidence of (prior use of such objects in support of the adverse party’s military effort), and when such (places) are not located in the immediate proximity of military objectives; 

“(e) Depriving any person protected by the Conventions (or the Protocol) of fair and regular trial.” 

It must be noted that the statute of the International Tribunal refers to grave breaches of the Geneva Conventions of 1949 in article 2 and to violations of the laws or customs of war in article 3. It does not refer explicitly to grave breaches of Additional Protocol I. Many of the grave breaches of Additional Protocol I also constitute violations of the laws and customs of war. 

Convention on the Prevention and Punishment of the Crime of Genocide 

The above was adopted by the UN General Assembly in December 1948 and came into effect in January 1951. 

All participating countries are required to prevent and punish actions of genocide in war and peacetime. 

Determining what historical events constitute a genocide and which are merely criminal or inhuman behavior is not a clearcut matter. Furthermore, in nearly every case where accusations of genocide have circulated, partisans of various sides have fiercely disputed the interpretation and details of the event, often to the point of promoting wildly different versions of the facts. An accusation of genocide is certainly not taken lightly and will almost always be controversial. The following list of alleged genocides should be understood in this context and not regarded as the final word on these subjects. 

The scope of international law 

International law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. 

As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. The law is similarly concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with group rightsthe treatment of aliens, the rights of refugees, international crimes, nationality problems and human rights generally. 

It further includes the important functions of the maintenance of international peace and security, 

arms control, the specific settlement of disputes and the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war, it has developed principles to govern the conduct of hostilities and the treatment of prisoners. 

Whilst municipal law is hierarchical or vertical, with the legislature enacting binding legislation, international law is horizontal, with all states being sovereign and theoretically equal. 

Because of this, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, most states enter into legal commitments to other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, “international law cannot exist in isolation from the political factors operating in the sphere of international relations”. 

Where there are breaches of the law international law has no established compulsory judicial system for the settlement of disputes or coercive penal system. That is not to say that there are no judicial or quasi-judicial tribunals in international law. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter. 

Traditionally, states were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law (e.g. NAFTA Chapter 11 

Enforcement by international bodies 

See main article: international legal system. 

Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General Assembly for debate. The General Assembly cannot make binding resolutions, but under the “Uniting for Peace” resolution (GA/RES/0377) it declared it could authorize the use of force if there had been Breaches of the Peace or Acts of Aggression, provided that the Security Council due to a negative vote of a permanent member failed to act. (This clause may be useful for us as
China and Russa would definetly try to block the Security Council.) 

It could call for other collective measures (such as economic sanctions) given a situation constituted the milder “threat to the Peace”. 

The legal significance of such a resolution is unclear, as the General Assembly cannot issue binding resolutions. 

They can also be raised in the Security Council. The Security Council can pass resolutions under Chapter VI of the UN Charter to recommend “Pacific Resolution of Disputes.” Such resolutions are not binding under international law, though they usually are expressive of the council’s convictions. 

In rare cases, the Security Council can pass resolutions under Chapter VII of the UN Charter related to “threats to Peace, Breaches of the Peace and Acts of Aggression,” and these are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations. 

It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council’s broad powers under Article 24(2), which states that “in discharging these duties (exercise of primary responsibility in international peace and security), it shall act in accordance with the Purposes and Principles of the United Nations”. 

The mandatory nature of such resolutions was upheld by the International Court of Justice in its advisory opinion on
Namibia. The binding nature of such resolutions can be deduced from an interpretation of their language and intent. 

We are glad to present a very important point of International Law that at the International Court of Justice an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee. 

The following parties could file their cases: 

1. States 

2. International organizations are usually the only ones with standing to address a violation of international law, some treaties, such as the International Covenant on Civil and Political Rights 

3. But there have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee. 

BANDOOLA