Fall 2015 -- History 224 -- Professor Patch

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ATTEMPTS TO CODIFY THE NUREMBERG STANDARDS

  1. United Nations Universal Declaration of the Rights of Man (December 1948).
  2. United Nations Convention on Genocide (December 1948).
  3. Geneva Convention on the Treatment of Prisoners of War (1949).
  4. “The Law of Land Warfare” (from the United States Army Field Manual, 1956).
  5. Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted by the UN in 1993, revised in 2000).

 

#1. UNITED NATIONS "UNIVERSAL DECLARATION OF THE RIGHTS OF MAN,"

added to the UN Charter in December 1948

(United Nations Document A/811): 

ARTICLE 1.  All human beings are born free and equal in dignity and rights.  They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood. 

ARTICLE 2. 

          (1) Everyone is entitled to all rights and freedoms set forth in this declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.  

          (2) Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether this territory be an independent, Trust, Non-Self-Governing territory, or under any other limitation of sovereignty. 

ARTICLE 3.  Everyone has the right to life, liberty and the security of the person.   

ARTICLE 4.  No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. 

ARTICLE 5.  No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.  

ARTICLE 6.  Everyone has the right of recognition everywhere as a person before the law. 

ARTICLE 7.  All are equal before the law and are entitled without any discrimination to equal protection before the law.  All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 

ARTICLE 8.  Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or law.

ARTICLE 9.  No one shall be subjected to arbitrary arrest, detention or exile. 

ARTICLE 10.  Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him.

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#2. UNITED NATIONS RESOLUTION 260:

CONVENTION ON THE PREVENTION AND PUNISHMENT

OF THE CRIME OF GENOCIDE

(adopted on 9 December 1948)

http://www.fordham.edu/halsall/mod/UN-GENO.html

 

The contracting parties,

Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world;

Recognizing that at all periods of history genocide has inflicted great losses on humanity; and

Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required;

Hereby agree as hereinafter provided.

Article 1. 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.

Art. 2. 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.

Art. 3. The following acts shall be punishable:

(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.

 Art. 4. Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

 Art. 5. The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article 3.

Art. 6. Persons charged with genocide or any of the other acts enumerated in Article 3 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.

Art. 7. Genocide and the other acts enumerated in Article 3 shall not be considered as political crimes for the purpose of extradition.

The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.

 

Art. 8. Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations.

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#3. GENEVA CONVENTION ON THE TREATMENT OF PRISONERS OF WAR

(adopted on August 12, 1949, by the Geneva Diplomatic Conference; http://www.unhchr.ch/html/menu3/b/91.htm)

Article 3:  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:

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….

Article 4:  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, fulfil 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.

Article 13:  Prisoners of war must at all times be humanely treated.  Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.   Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.  Measures of reprisal against prisoners of war are prohibited.

Article 14: Prisoners of war are entitled in all circumstances to respect for their persons and their honour.  Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men….

Article 17:  Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status….  No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.  Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind....

Article 25:  Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area. The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health….

Article 34:  Prisoners of war shall enjoy complete latitude in the exercise of their religious duties, including attendance at the service of their faith, on condition that they comply with the disciplinary routine prescribed by the military authorities.  Adequate premises shall be provided where religious services may be held.

Article 71: Prisoners of war shall be allowed to send and receive letters and cards. If the Detaining Power deems it necessary to limit the number of letters and cards sent by each prisoner of war, the said number shall not be less than two letters and four cards monthly…

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#4. THE UNITED STATES ARMY FIELD MANUAL

“The Law of Land Warfare” (1956)

http://www.law.umkc.edu/faculty/projects/ftrials/mylai/fieldman.html

2.    Purposes of the Law of War

The conduct of armed hostilities on land is regulated by the law of land warfare which is both written and unwritten.  It is inspired by the desire to diminish the evils of war by:

    a.    Protecting both combatants and non-combatants from unnecessary suffering;

    b.    Safeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians; and

    c.    Facilitating the restoration of peace....

3.    Basic Principles

    a.    Prohibitory Effect.  The law of war places limits on the exercise of a belligerent's power in the interests mentioned in paragraph 2 and requires that belligerents refrain from employing any kind or degree of violence which is not actually necessary for military purposes and that they conduct hostilities with regard for the principles of humanity and chivalry.

    The prohibitory effect of the law of war is not minimized by "military necessity" which has been defined as that principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible.  Military necessity has been generally rejected as a defense for acts forbidden by the customary and conventional laws of war inasmuch as the latter have been developed and framed with consideration for the concept of military necessity.

    b.     Binding on States and Individuals.  The law of war is binding not only upon States as such but also upon individuals and, in particular, the members of their armed forces....

498.  Crimes Under International Law

Any person, whether a member of the armed forces or a civilian. who commits an act which constitutes a crime under international law is responsible thereof and liable to punishment....

499.  War Crimes

The term "war crime" is a technical expression for violation of the law of war by any person or persons, military or civilian.  Every violation of the law of war is a war crime....  

501.  Responsibility for Acts of Subordinates

In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control.  Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander.  Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned.  The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof....

505.  Universality of Jurisdiction

. . . b.    Persons Charged with War Crimes.  The United States normally punishes war crimes as such only if they are committed by enemy nationals or by persons serving the interests of the enemy State.  Violations of the law of war committed by persons subject to military law of the United States will usually constitute violations of the Uniform Code of Mlitary Justice and, if so, will be prosecuted under that Code.... Commanding officers of United States troops must insure that war crimes committed by members of their forces against enemy personnel are promptly and adequately punished.

508.  Penal Sanctions

The punishment imposed for a violation of the law of war must be proportionate to the gravity of the offense.  The death penalty may be imposed for grave breaches of the law....

509.  Defense of Superior Orders

    a.     The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character as a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act was unlawful.  In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment.

    b.     In considering the question of whether a superior order constitutes a valid defense, the court shall take into consideration the fact that obedience to lawful military orders is the duty of every member of the armed forces; that the latter cannot be expected, in conditions of war discipline, to weigh scrupulously the legal merits of the order received; that certain rules of warfare may be controversial; or that an act otherwise amounting to a war crime may be done in obedience to orders conceived as a measure of reprisal.  At the same time it must be borne in mind that members of the armed forces are bound to obey only lawful orders.

510.  Government Officials

The fact that a person who committed an act which constitutes a war crime acted as the head of a State or as a responsible government official does not relieve him from responsibility for his act.

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#5. STATUTE OF THE INTERNATIONAL CRIMINAL TRIBUNAL

FOR THE FORMER YUGOSLAVIA

(first adopted by the UN in 1993, finalized in 2000)

http://www.un.org/icty/glance/index.htm 

Article 1. Competence of the International Tribunal:

The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.

Article 2.  Grave breaches of the Geneva Conventions of 1949:

The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages.

Article 3.  Violations of the laws or customs of war:

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property.

Article 4.  Genocide:

1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.

2. 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.

3. The following acts shall be punishable:

(a) genocide;
(b) conspiracy to commit genocide;
(c) direct and public incitement to commit genocide;
(d) attempt to commit genocide;
(e) complicity in genocide.

Article 5.  Crimes against humanity:

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 7.  Individual criminal responsibility:

1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

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