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WAR CRIMES

What is a war crime?


They are generally unlawful acts committed in the course of conflict
This is to be distinguished from aggression which is the crime of starting an unlawful
war
The earliest recorded war crimes trial occurred in 1474, when Peter von Hagenbach was tried
and executed for brutally dealing with the population of Breisach, Germany (where he was
the military governor) in order to subdue them
Jus ad bellum (JAB) refers to the principles that determine when resort to war is just
Whereas, Jus in bello (JIB) refers to the rules of warfare, including:
Noncombatant immunity
Proportionality
Necessity
No unnecessary suffering
International law today, regards certain grave breaches of the most important treaties
regulating the conduct of armed conflict as war crimes.
Grave breaches are therefore the most serious category of war crimes
They thus include certain core violations common to all 4 Geneva Conventions:
wilful killing, torture or inhuman treatment, including biological experiments,
wilfully causing great suffering or serious injury to body or health .
The geneva conventions
Laws of war
The Four (4) Geneva Conventions and their additional protocols represent the codification
of the laws of war
Most of the provisions, it has been argued, were already international custom to which all
were bound
However, the adoption of a treaty (treaties) setting down the rules of war, signified a triumph
for humanity as a whole!
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field (CONVENTION I)
Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea (CONVENTION II)
Convention relative to the Treatment of Prisoners of War (CONVENTION III)
Convention relative to the Protection of Civilian Persons in Time of War (CONVENTION
IV)

COMMON ARTICLE III


Articles III of all the 4 Geneva Conventions are usually referred to as common article 3
This is because, the provision is the same for all the 4 Conventions
It is in relation to conflicts not of an international character
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 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.

QUESTIONS ARISING
When is an armed conflict of an international character?
When is non-international violence an armed conflict?
When is an armed conflict not of an international character?
When is an armed conflict of an international character?

Article IV of the Third (III) Geneva Convention provides:


Prisoners of war, in the sense of the present Convention, are persons belonging to one of the
following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or
volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of
organized resistance movements, belonging to a Party to the conflict and operating in or outside
their own territory, even if this territory is occupied, provided that such militias or volunteer
corps, including such organized resistance movements, fulfill the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

Prosecutor v. tadic
READ THIS CASE

Targeted killings as a war crime


Intentionally targeting any civilian during an international armed conflict is a war crime
Thus, intentionally targeting the leaders of enemy states are war crimes, where the leaders
are civilians not directly involved in military decision-making
See the case of Public Committee against Torture v. Israel, 46 I.L.M. 375 (Isr. 2007)
http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.pdf

International CRIMES
Serious crimes that are committed by the State or are State sponsored such as genocide,
torture etc are shocking
Sometimes we seek the origins of such heinous crimes by examining the pathological
personality of the perpetrator/the inherent evil in that particular political system
There are also times that claims are made that crimes like the holocaust are inherently
unclassifiable
This is because, according to the proponents of such ideas, such crimes portray a unique,
incomparable and largely incomprehensible event
Take the argument of Hans Magnus Enzensberger for example:
He claims that those who term Adolf Hitler a common criminal, render him apparently
harmless, mistransforming his crimes into something comprehensible.
This particular assertion actually has some merit if you consider the nature and extent of the
crimes that were committed during the holocaust
And there were justifications for the Holocaust!
Heinrich Himmler (4th October, 1943) I am now talking about the evacuation of Jews,
the extermination of the Jewish people . This is clear, it is part of our party program,
elimination of the Jews. This is a glorious chapter in our history that has never been written
and never shall be written .
There are various International Crimes that are recognized
Genocide
Crimes Against Humanity
War Crimes
genocide
Historical background
Genocide is sometimes referred to as the crime of crimes
Although there is some fear in so doing, few words bring out human emotions as the G-
word does
The word genocide however did not exist until 1944
A lawyer named Raphael Lemkin, coined the word
He was a Polish Jew, who fled the German invasion at the beginning of World War II; and
ended up in the United States of America
He thus throughout his exile struggled to draw the attention of the world to a crime which
had no name at the time
The ancient Greek word for tribe is Genos
Whereas cide is a suffix which connotes killing; and is derives from the Latin word
cidium i.e. act of killing
Lemkin thus formed the word genocide to indicate that this crime was not simply the
destruction of humans generally, but it was the destruction of entire peoples!
He had, earlier in his career labelled the crime barbarism; and had urged the League of
Nations to outlaw that crime
This name did not however catch on, and thus failed but he was not perturbed
He tried again, and finally he was succesful
Although Lemkins word was new, the crime it described was not
This is because in the Hebrew Bible, Saul and David are said to have received divine
commands to wipe out the Amalekites!
Now go and strike Amalek and devote to destruction all that they have. Do not spare them,
but kill both man and woman, child and infant, ox and sheep, camel and donkey. 1 Samuel
15:2-3
There are several instances of genocide or genocidal attacks throughout the history of the
world
In the 16th Century, French Catholics slaughtered about 100,000 Protestant Huguenots
However, the first 20th century genocide occurred in the colonial war between the Germans
and the rebellious Herero people in Southwest Africa (Namibia)
General Lothar von Trotha extermination order:
Within the German borders, every Herero, whether armed or unarmed, with or without
cattle, will be shot.
Under this order, it is estimated that the German forces killed about 65,000 Hereros (about
three-fourths of their entire population between 1904 and 1907!)
The Turkish destruction of the Ottoman Empires Armenian minority in World War I, with an
estimated death toll of 1.5 million Armenians is another example
In 1921 however, a young Armenian by name Soghoman Tehlirian, shot dead Talaat Pasha
(one of the chief organizers of the Armenian massacre) on a street in Berlin
Tehlirian was however acquitted
The foundation of our present day conception of the crime known as genocide is the
Convention on the Prevention and Punishment of the Crimes of Genocide
It is often referred to as the Genocide Convention
It was drafted under the auspices of the UN; and entered into force on January 12th 1951
Article I
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 II
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 III of the Genocide Convention made the following acts punishable:
Genocide
Conspiracy to commit genocide
Direct and public incitement to commit genocide
Attempt to commit genocide
Complicity in genocide

ESSENTIAL ELEMENTS
with intent to destroy a group
to destroy a group, as such
in whole or in part
The protected groups
Genocide cases
PROSECUTOR v. AKAYESU (Case No. ICTR-96-4-T September 2nd 1998)
PROSECUTOR v. KRSTIC (Case No. IT-98-33-A April 19th 2004)
PROSECUTOR v. AL BASHIR (Case No. ICC-02/05-01/09 arrest warrant)

Akayesu case
Jean Paul Akayesu was the bourgmestre of Taba commune in Rwanda
He was accused of having done nothing to protect Tutsis in his community from the
genocide; and of participating in the genocide himself
He was convicted of genocide, direct and public incitement to genocide; but was acquitted of
complicity in genocide
In the opinion of the chamber, it is particularly important to respect the intention of the
drafters of the Genocide Convention, which according to the travaux preparatoires, was
patently to ensure the protection of any stable and permanent group With regard to the
crime of genocide, the offender is culpable only when he has committed one of the offences
charged under Article 2(2) of the Statute with the clear intent to destroy, in whole or in part, a
particular group. The offender is culpable because he knew or should have known that the act
committed would destroy, in whole or in part, a group.

Radislav krstic case


It is well established that where a conviction for genocide relies on the intent to destroy a protected
group in part, the part must be a substantial part of that group The determination of when the
targeted part is substantial enough to meet this requirement may involve a number of considerations.
The numeric size of the targeted part of the group is the necessary and important starting point,
though not in all cases the ending point of the inquiry. The number of individuals targeted should be
evaluated not only in absolute terms, but also in relation to the overall size of the entire group.
The crime of Genocide in Ghanaian law
Is genocide recognized as a crime in ghanaian law?
As has already been noted, Genocide is an international crime
Some argue that the crime of Genocide is a Jus Cogens norm

As a result, such Jus Cogens norms (like the crime of Genocide) is said to constitue obligatio
erga omnes
Legal implications
Duty to prosecute or extradite;
Non-applicability of limitation statutes;
Non-applicability of any immunities;
Non-applicability of certain defenses;
Universality of obligations;
Non-derogation;
Universal Jurisdiction
Section 49a of act 29
(1) A person who commits genocide is liable on conviction to be sentenced to death.
(2) A person commits genocide where, with intent to destroy, in whole or in part, any national,
ethical, racial or religious group, that person
(a) Kills members of the group;
(b) Causes serious bodily or mental harm to members of the group;
(c) Deliberately inflicts on the group conditions of life calculated to bring its physical
destruction in whole or in part;
(d) Imposes measures intended to prevent births within the group;
(e) Forcibly transfers children of the group to another group.
Test case
Consider the case of Kennedy Agyapong

CRIMES AGAINST HUMANITY


Historical background
The modern conception of crimes against humanity has its origins in 1946 (during the
drafting phase of the Nuremberg Charter)
Early drafts of the Charter included just 2 categories of crimes:
crimes against peace (i.e. planning or launching aggressive wars); and
war crimes
The drafters however soon realized that some of the most significant Nazi crimes did not
have the characteristics of traditional war crimes
Before the war even begun, Hitler was persecuting the Jews within Germany; and the
ensuing holocaust was a totally different crime than the other categories of war crimes
Thus, the first draft of the Nuremberg Charter had genocide as one such war crime
The word genocide however dropped out in the final draft of the Charter, and was replaced
with crimes against humanity
It is therefore important to note that the crimes of genocide and crimes against humanity are
closely related; although they have different legal definitions and differing underlying
emphasis
Both crimes are however legal responses to the Holocaust as well as other persecution of
civilians

Three differences
Whereas genocide is a specific intent offence, crimes against humanity require only
knowledge and general intent
Genocide requires an attack on some specific protected groups; whilst crimes against
humanity require an attack against civilian populations (even if they are not one such
protected group)
Genocide involves the intent to destroy the protected group as such, whilst crimes against
humanity places no such emphasis on groups as such!
The hague conventions of 1899 and 1907
These Conventions represented important multilateral treaties establishing the laws and
regulations that were to govern warfare
They both stated in their preambles, words to the effect that:
both civilians and belligerents would remain protected by the laws of humanity
The Hague Conventions however fell short of defining of stating specifically what the laws
of humanity were and what constituted its violation
Also, after the Turkish massacre of Armenians, the Allied powers (France, Britain & Russia)
denounced Turkey for crimes against humanity and civilization
They proposed trying the Turkish leadership for these crimes but the US objected
The Nuremberg Charter finally defined what the so-called crimes against humanity were
However, the best way of understanding the nature and scope of crimes against humanity is
by an examination of how the Nuremberg Charters definition has evolved
So it is instructive to examine various definitions of this crime, by the ICTR; the ICTY; and
the ICC.
Article 6(c) of the nuremberg charter
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 domestic law of the country where
perpetrated.
Under the Nuremberg Charter:
1. The crimes are committed against any civilian population.
2. Two types of crimes against humanity
(a) murder-type crimes
(b) persecution-type crimes
3. These are international crimes because they are criminalized even if there is no domestic law in
the state where is occurs
4. The crimes are connected with war.

It suffices to note that for both type of crimes, the victim must be a member of a group
With respect to the murder-type crimes, that group is any civilian population
Whereas with respect to the persecution-type crimes, that group must also be racial, religious
or political
Control council law no. 10

Crimes against humanity. Atrocities and offences, including but not limited to murder,
extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts
committed against any civilian population, or persecution on political, racial or religious grounds
whether or not in violation of the domestic laws of the country where perpetrated.
Article 5 of the icty statute
The International Tribunal shall have the power to prosecute persons responsible for the following
crimes when committed in armed conflict, whether international or internal in character, and directed
against any civilian population:
(a) Murder;
(b) Extermination
(c) Enslavement
(d) Deportation
(e) Imprisonment
(f) Torture
(g) Rape
(h) Persecutions on political, racial, and religious grounds;
(i) Other inhumane acts.
Article 3 of the ictr statute
The International Tribunal for Rwanda shall have the power to prosecute persons responsible for
the following crimes when committed as part of a widespread or systematic attack against any
civilian population on national, political, ethnic, racial or religious grounds ..
Article 7 of the rome statute of the icc
For the purposes of this Statute, crimes 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
(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.

GENERAL CHARACTERISTICS OF CRIMES AGAINST HUMANITY


The crimes must have been committed against a civilian population
The crimes are two-fold: the murder type and the persecution type
The crimes are international
c.a.h. cases
Prosecutor v. Kupreskic (Case No. IT-95-16-T January 14th 2000)
Prosecutor v. Musema (Case No. IT-96-13-A January 27th 2000)
The kupreskic case
The background to this case, is the Bosnian war
On 16th April 1993, units within the Croatian Defense Council (HVO) a military
organization of Bosnian Croats, attacked the village of Ahmici, killing 100 muslim residents
including women and children
Also, 170 muslim houses and two mosques were burned
All six (6) defendants lived in and around the village of Ahmici
Before the war, Bosnian Croats and Muslims lived together in harmony
Only one of these accused persons held a military position
The accused were charged with helping prepare the April 1993 attack by participating in
military training and arming themselves; evacuating Bosnian Croats the night before the
attack; organizing HVO soldiers, weapons and ammunition in and around the village;
preparing their homes and the homes of their relatives as staging areas and firing locations
for the attack, and by concealing from the other residents the fact that the attack was
imminent.
Holding of the tribunal
First, the crimes must be directed at a civilian population, specifically identified as a group by the
perpetrators of those acts, secondly, the crimes must, to a certain extent, be organized and
systematic. Although they need not be related to a policy established at State level, in the
conventional sense of the term, they cannot be the work of isolated individuals alone. Lastly, the
crimes, considered as a whole, must be of a certain scale and gravity
In general terms, the very nature of the criminal acts over which the International Tribunal has
jurisdiction under article 5, in view of the fact that they must be directed against any civilian
population, ensures that what is to be alleged will not be one particular act but, instead, a course of
conduct. Nevertheless, in certain circumstances, a single act has comprised a crime against humanity
when it occurred within the necessary context. For example, the act of denouncing a Jewish
neighbour to the Nazi authorities if committed against a background of widespread persecution
has been regarded as amounting to a crime against humanity. An isolated act, however i.e. an
atrocity which did not occur within such a context cannot.

THINGS TO NOTE
Crimes against humanity can comprise isolated acts, if done within the context of a
widespread or systematic attack against a civilian population
The requisite mens rea requirements are intent and knowledge
Persecution can consist of the deprivation of a wide variety of rights; and need not be
explicitly prohibited under Article 5 or elsewhere in the ICTY Statute
Persecution is defined as:
the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in
international customary or treaty law, reaching the same level of gravity as the other acts
prohibited in Article 5

THE RIGHT TO FREE SPEECH & OPINION/ HUMAN RIGHTS & THE CRIMINAL
JUSTICE SYSTEM
Article 11 of the French Declaration 1789 states that the free communication of ideas and
opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak,
write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be
defined by law

Freedom of Speech & Opinion


INTRODUCTION
Freedom of speech and opinion connotes the broad freedom to communicate a concept that far
transcends mere speech.
It is believed that this right emerged in Ancient Greece sometime in the late 6th or early 5th BC
Early human rights documents such as the English Bill of Rights 1689 and the French
Declaration of Rights of Man and the Citizen 1789 affirmed the concept of freedom of speech as
fundamental and inalienable
International Perspective
The right to free speech and opinion is recognised under
a. International Human Rights Law
(Treaties, Customary International Law, State Practices)
b. Universal Declaration on Human Rights 1948:
Aritcle 19 "Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart information
and ideas through any media and regardless of frontiers.
c. International Covenant on Civil and Political Rights:
Article 19 (1)&(2) states that "everyone shall have the right to hold opinions without
interference" and "everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other media of
his choice"
d. African Charter on Human and Peoples Rights:
e. Article 9 states that every individual shall have the right to receive information. Every
individual shall to express and disseminate his opinions within the law.
Local Perspective
Article 12(1) of the 1992 Constitution protects the fundamental human rights and freedoms
enshrined in the Constitution and enjoins all arms of government to respect them.
Article 21 (1)(a) states that all persons shall have the right to freedom of speech and
expression, which shall include freedom of the press and other media
Chapter 12 of the Constitution specifically Articles 162 & 163 deal with issues relating to
freedom of the media
Limitations
Article 21(4)(e) of the Constitution states nothing in, or done under the authority of, a law shall
be held to be inconsistent with, or in contravention of, this article to the extent that the law in
question makes provision that is reasonably required for the purpose of safeguarding the people
of Ghana against the teaching or propagation of a doctrine which exhibits or encourages
disrespect for the nationhood of Ghana, the national symbols and emblems, or incites hatred
against other members of the community; except so far as that provision or as the case may be,
the thing done under the authority of that law is shown not to be reasonably justifiable in terms
of the spirit of this Constitution
Article 164 of the Constitution also states the provisions of articles 162 & 163 of this
Constitution are subject to laws that are reasonably required in the interest of national security,
public order, public morality and for the purpose of protecting the reputations, rights and
freedoms of other persons.
The acid test for laws which impose limitations on the right to free speech and opinion is the test
of reasonableness
What are the standards or benchmarks for determining the reasonableness or a particular
legislation?
Limitations imposed by legislation

Article 31 of the Constitution on Emergency Powers specifically clause 10 thereof.


nothing in, or done under the authority of, an Act of Parliament shall be held to be inconsistent
with, or in contravention of articles 12 to 30 of this Constitution to the extent that the Act in
question authorizes the taking, during any period when a state of emergency is in force, of
measures that are reasonably justifiable for the purposes of dealing with the situation that exists
during that period.

Criminal Offences Act, 1960 (Act 29)


Libel (Repealed section 112 Act 29)
Whoever is guilty of intentional libel shall be guilty of misdemeanour and whoever is guilty
of negligent libel shall be liable to a fine not exceeding GHS40 upon conviction.
Section 113 also states a person is guilty of libel, who, by print, writing, painting, effigy, or
by any means otherwise than solely by gestures, spoken words, or other grounds, unlawfully
publishes any defamatory matter concerning another person, either negligently or with intent
to defame that other person.
These provisions were repealed by The Criminal Code (Repeal of Criminal Libel and
Seditious Laws) (Amendment) Act, 2001 (Act 602).
Sedition
Blacks Law Dictionary defines it as communication or agreement which has as its objective the
stirring up of treason or certain lesser commotions, or the defamation of the government.
P. K. Twumasi in Criminal Law in Ghana at page 431 also defines sedition as any language or
conduct which tends to undermine public order, safety and tranquility
Section 183 of Act 29 deals extensive with sedition and publication of seditious material

It prohibits the importation, distribution and publication of seditious material.


Specifically, subsection 3 states that any person who conspires with any person to carry into
execution any seditious enterprise, or prints or publishes any seditious words or writing or utters
any seditious words, or sells, offers for sale distributes, reproduces or imports any newspaper,
book or document on any part thereof, or extract therefrom containing any seditious words or
writing, shall be guilty of second degree felony.
The offence carries a minimum punishment of five years.
Conditions Precedent to prosecution:
Action must be commenced within six months of alleged commission of offence
The evidence adduced at trial must be corroborated
The written consent of the Attorney-General must be obtained
Mensah Gyimah v The Republic [1971] 2GLR 147

Section 207Offensive Conduct Conducive to Breaches of Peace.


Any person who in any public place or at any public meeting uses threatening, abusive or
insulting words or behaviour with intent to provoke a breach of the peace or where-by a breach
of the peace is likely to be occasioned, shall be guilty of a misdemeanour.

Section 208Publication of False news with Intent to Cause fear and Alarm to Public.
(1) Any person who publishes or reproduces any statement, rumour or report which is likely to
cause fear and alarm to the public or to disturb the public peace knowing or having reason to
believe that the statement, rumour or report is false is guilty of a misdemeanour.
(2) It is no defence to a charge under subsection (1) that the person charged did not know or did
not have reason to believe that the statement, rumour or report was false unless he proves that,
prior to publication, he took reasonable measures to verify the accuracy of the statement, rumour
or report.
Justice Oliver Wendell Holmes Jnr in Schenck v United States (1919) stated the most stringent
protection of free speech would not protect a man falsely shouting fire in a theater and causing a
panic. ... The question in every case is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.
Contempt of Court
Blacks Law Dictionary defines it as any act which is calculated to embarrass, hinder, or
obstruct court in administration of justice, or which is calculated to lessen its authority or its
dignity.
Republic v Mensa-Bonsu and others; Ex parte Attorney-General [1995-96] 1 GLR 377 - 531