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Historical Origins of Human Rights


... 'crime against humanity' ... incorporates Nuremberg crimes against humanity and adds new ... the major limitations of at least one crime against humanity. ... – PowerPoint PPT presentation

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Title: Historical Origins of Human Rights

Historical Origins of Human Rights
  • Lecture 16
  • The Geneva and Genocide Conventions
  • November 3, 2005

  • law as retrospective and prospective
  • founding the postwar order in the law of war
  • law and atrocity, regulation and violence,
    humanitarian law and the moderation of war
  • the Geneva Conventions important features
  • Raphael Lemkin and the Genocide Convention
  • the spectacular and the structural

prospective rules
  • the Nuremberg trials retrospective judgment
  • based on prospective principles, and providing
    much value as precedent
  • but trials were only one way also a new body of
    rules that might help the world avoid any
    repetition of the immediately preceding
  • in some respects, these new rules went even
    further than Nuremberg had in extending
    humanitarian protection

the ICRC
  • the ICRCs emergence from war
  • Nobel Peace Prize
  • the Committee by its action throughout this war
    has held aloft the fundamental conceptions of the
    solidarity of the human race, and the identity of
    the vital interests of different nations and of
    the need for true understanding and
    reconciliation, if peace is ever to be brought
    about. In doing so, it has contributed to the
    promotion of the concept of that fraternity
    among nations

the Geneva Conventions
  • text (1949, U.S. joins in 1955)
  • four conventions (four common articles to
  • I sick and wounded soldiers
  • II naval equivalent
  • III POWs
  • IV civilians
  • angles who is covered, what is new about the
    content, and how enforced?

the end of reciprocity requirement
  • Art. 2. In addition to the provisions which shall
    be implemented in peace-time, the present
    Convention shall apply to all cases of declared
    war or of any other armed conflict which may
    arise between two or more of the High Contracting
    Parties, even if the state of war is not
    recognized by one of them. The Convention shall
    also apply to all cases of partial or total
    occupation of the territory of a High Contracting
    Party, even if the said occupation meets with no
    armed resistance. Although one of the Powers in
    conflict may not be a party to the present
    Convention, the Powers who are parties thereto
    shall remain bound by it in their mutual
    relations. They shall furthermore be bound by the
    Convention in relation to the said Power, if the
    latter accepts and applies the provisions thereof.

  • treaty and contract mutuality or reciprocity
  • problems in law of war
  • what if no resistance?
  • what if one side not a party?
  • a note on IHL as customary law

  • party v party both bound
  • party v. alliance of party and non-party parties
    bound in fighting each other
  • party v. non-party both bound if non-party
    accepts rules in practice
  • non-party v. non-party apparently no rules
  • But cf. Art. 4 Nationals of a State which is
    not bound by the Convention are not protected by
    it. (but cf. Convention IV, Art. 14 on civilians)

Alberto Gonzales memo
U.S. argument as adopted
  • first, U.S. decision whether conventions apply
  • who else?
  • it is true that Afghanistan was a bound party
  • but enemy pursued (al Qaeda) not a state
  • Taliban sheltering enemy not a state
  • therefore, no need to reach question of who bound
    because there is no other state involved
  • see web for Colin Powells protest and Gonzaless

Common Art. 3
  • Art. 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
    (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
    further 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

Bush directive
Additional Protocol II (1977)
  • 1. This Protocol, which develops and supplements
    Article 3 common to the Geneva Conventions of 12
    August 1949 without modifying its existing
    conditions or application, shall apply to all
    armed conflicts which are not covered by Article
    1 of the Protocol Additional to the Geneva
    Conventions of 12 August 1949, and relating to
    the Protection of Victims of International Armed
    Conflicts (Protocol I) and which take place in
    the territory of a High Contracting Party between
    its armed forces and dissident armed forces or
    other organized armed 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.2. This Protocol
    shall not apply to situations of internal
    disturbances and tensions, such as riots,
    isolated and sporadic acts of violence and other
    acts of a similar nature, as not being armed

civilians (Convention IV)
  • Art. 13 The provisions of Part II cover the
    whole of the populations of the countries in
    conflict, without any adverse distinction based,
    in particular, on race, nationality, religion, or
    political opinion, and are intended to alleviate
    the sufferings caused by war.
  • Part II basic protections
  • Art. 32-34 collective penalties, pillage,
    reprisals, hostage taking
  • Part III, Sect. 3 rules governing occupation
    Sect. 4 rules governing detention

nuclear weapons
  • mines, biological, chemical weapons
  • but nuclear weapons are not illegal
  • International Court of Justice advisory opinion
  • 95. Nor can the Court make a determination on the
    validity of the view that the recourse to nuclear
    weapons would be illegal in any circumstance
    owing to their inherent and total incompatibility
    with the law applicable in armed conflict.
    Certainly, as the Court has already indicated,
    the principles and rules of law applicable in
    armed conflict at the heart of which is the
    overriding consideration of humanity make the
    conduct of armed hostilities subject to a number
    of strict requirements. Thus, methods and means
    of warfare, which would preclude any distinction
    between civilian and military targets, or which
    would result in unnecessary suffering to
    combatants, are prohibited. In view of the unique
    characteristics of nuclear weapons, to which the
    Court has referred above, the use of such weapons
    in fact seems scarcely reconcilable with respect
    for such requirements. Nevertheless, the Court
    considers that it does not have sufficient
    elements to enable it to conclude with certainty
    that the use of nuclear weapons would necessarily
    be at variance with the principles and rules of
    law applicable in armed conflict in any

humanizing law as a moral strategy
  • insofar as law is allowed to get a foothold in
    war, it will slowly grow to allow the abolition
    of war Gustave Moynier of ICRC We might note
    that the Convention has furnished an argument in
    favor of the brotherhood of men. In subscribing
    to it, the several factions of civilized mankind
    have never before with so much unity placed
    themselves under a common rule, formulated
    entirely in light of moral considerations.
    Recognizing that after all they all belong to the
    same family, men have concluded that they ought
    to begin by showing some regard for anothers
    suffering, up to a certain point pending the
    time when a still stronger conviction of their
    common humanity shall lead them to understand
    that the very idea of their killing one another
    is monstrous. La civilisation de la guerre
    the humanizing of war could end only in its
    abolition. Sursum corda! (1890). (Sursum corda
    Latin for Lift up your hearts, said in Mass
    right before the beginning of the Eucharistic
    Prayer, after the gifts of bread and wine have
    been brought forward to be consecrated.)

law as limited vehicle
  • law as vehicle of humane values
  • but limits of law persisting need for
    contractual acceptance of rules later applied
  • respect for internal sovereignty
  • leaving future cases out only as good as the
    last war?
  • coverage v. nothingness

grave breaches
  • IV, Art. 147 Grave breaches shall be those
    involving any of the following acts, if committed
    against persons or property protected by the
    present Convention willful killing, torture or
    inhuman treatment, including biological
    experiments, willfully causing great suffering or
    serious injury to body or health, unlawful
    deportation or transfer or unlawful confinement
    of a protected person, compelling a protected
    person to serve in the forces of a hostile Power,
    or willfully depriving a person of the rights of
    fair and regular trial prescribed in the present
    Convention, taking of hostages and extensive
    destruction and appropriation of property, not
    justified by military necessity and carried out
    unlawfully and wantonly.

from Nuremberg to Geneva
  • incorporates Nuremberg concept of individual
    responsibility for state crime
  • drops term crime against humanity
  • but grave breaches incorporates Nuremberg
    crimes against humanity and adds new ones
  • Nuremberg murder, enslavement, deportation, and
    other inhuman acts on political, racial, or
    religious grounds
  • Geneva adds torture, biological experimentation,
    unjustified extrajudicial procedures to list
  • later more specification of crimes
  • and search for enforcement

  • Art. 146 The High Contracting Parties undertake
    to enact any legislation necessary to provide
    effective penal sanctions for persons committing,
    or ordering to be committed, any of the grave
    breaches of the present Convention defined in the
    following Article. Each High Contracting Party
    shall be under the obligation to search for
    persons alleged to have committed, or to have
    ordered to be committed, such grave breaches, and
    shall bring such persons, regardless of their
    nationality, before its own courts. It may also,
    if it prefers, and in accordance with the
    provisions of its own legislation, hand such
    persons over for trial to another High
    Contracting Party concerned, provided such High
    Contracting Party has made out a prima facie case

Raphael Lemkin (1900-1959)
a crime with a name
  • Lemkin, Axis Rule in Occupied Europe (1944)
  • the word genocide as deriving from the Greek
    word genos (tribe, race) and the Latin cide
  • interwar background Madrid Conference, 1933
  • barbarism and vandalism (culture)
  • barbarism as precursor concept of genocide
  • Genocide Convention (approved 1948, entry in
    force 1951)

the force of personality
  • Never in the history of the United Nations has
    one private individual conducted such a lobby. He
    could be seen everywhere in the committee rooms
    and, by common consent, was accorded privileges
    denied to other private individuals. But he was a
    very difficult man, who looked for enemies under
    every bench, which was probably the reason we had
    difficulty getting the jurists to sit down around
    one table they even refused to have their
    picture taken together. (John Humphrey)
  • I do not belong exclusively to one race or
    religion. God chose me for a cause that is larger
    than my interests, as large as all humanity. I
    feel that there is a protective force working
    with me, otherwise I would not have been able to
    survive. (Lemkin on himself)

  • barbarism If we analyze the driving ideas of
    certain offences against the law of nations, like
    trade in slaves and trade in women and children,
    we see that if these offences are regarded as
    punishable, it is due to humane principles. In
    these cases the principles are, above all, to
    protect the freedom and the dignity of the
    individual, and to prevent human beings from
    being treated as merchandise.  Some other
    provisions relating to the offences against the
    law of nations relate to the protection and
    maintenance of the normal peaceful relations
    between collectivities, for example the offence
    of the propaganda for a war of aggression. The
    prohibitions of such attacks have as a goal to
    assure good cultural and economic relations
    between nations.  However, there are offences
    which combine these two elements. In particular
    these are attacks carried out against an
    individual as a member of a collectivity. The
    goal of the author of the crime is not only to
    harm an individual, but also to cause damage to
    the collectivity to which the later belongs.
    Offenses of this type bring harm not only to
    human rights, but also and most especially they
    undermine the fundamental basis of the social
    order. Let us consider, first and foremost, acts
    of extermination directed against the ethnic,
    religious or social collectivities whatever the
    motive (political, religious, etc.) for example
    massacres, pogroms, actions undertaken to ruin
    the economic existence of the members of a
    collectivity, etc. Also belonging in this
    category are all sorts of brutalities which
    attack the dignity of the individual in cases
    where these acts of humiliation have their source
    in a campaign of extermination directed against
    the collectivity in which the victim is a

nature of concept
  • who does it protect? answer homogeneous groups,
    on the grounds that group identity is especially
    (more than individual or masses of heterogeneous
    individuals) valuable and in need of protection
  •  As legally defined, in effect, genocide refers
    to the massacre only of certain communities. It
    is a crime committed not against members of
    ethnically or racially or religiously diverse
    groups but only against members of ethnically or
    racially or religiously homogeneous groups.
  • consequently, the list of mass homicides that
    dont fall under the genocide convention is long

genocide or human rights?
  • it turns out that genocide is a version of the
    interwar focus on minority rights
  • Lemkins role is doggedly preserving a remnant of
    it in a new time focused on individual rights
  • some (like Charles Malik and René Cassin) saw
    potential tension between two instruments and
    opposed the genocide convention
  • Lemkin on engagement (human rights declaration)
    versus marriage (genocide convention) They
    should postpone the education of the free world
    of humanity, and rather turn the sharp edge of
    international law, such as the genocide
    convention, which is already in force against the
    modern Genghis Khans...

are groups biological?
  • not merely the project of substituting one
    culture for another while the old people remain
    alive under the new regime
  • a process in which the population is attacked,
    in a physical sense, and is removed and
    supplanted by populations of the oppressor
  • the physical decline and even destruction of the
    population involved.

why peoplehood?
  • Lemkin It became clear to me that the diversity
    of nations, religious groups and races is
    essential to civilization because every one of
    these groups has a mission to fulfill and a
    contribution to make in terms of culture. To
    destroy these groups is opposed to the will of
    the Creator and to disturb the spiritual harmony
    of mankind.
  • The philosophy of the Genocide Convention is
    based on the formula of the human cosmos. This
    cosmos consists of four basic groups national,
    racial, religious and ethnic. The groups are
    protected not only by reason of human compassion
    but also to prevent draining the spiritual
    resources of mankind.

the exclusion of cultural or political
homogeneity (or heterogeneity)
  • The Soviets succeeded in excluding mass murder
    for political reasons from the definition of
    genocide the law did not protect political
    groups. (The Soviet delegation and its
    supporters, mainly Communist countries in Eastern
    Europe as well as some Latin American countries,
    had argued that including political groups in the
    convention would inhibit states that were
    attempting to suppress internal armed revolt.)

towards the convention
  • in December 1946, the General Assembly of the UN
    adopted a resolution affirming genocide as a
    crime denying the right of existence of entire
    human groups that issued in great losses to
    humanity in the form of cultural and other
  • the indictment of the IMT included deliberate
    and systematic genocide, viz., the extermination
    or racial and national groupsparticularly Jews,
    Poles, and Gypsies.
  • but none of the accused Nazis was convicted of
    this crime.
  • Lemkin one of three experts appointed to help
    formulate a draft convention (the Secretariats
    Draft) that included a special provision on
    cultural genocide that did not survive
  • but this provision, per se, did not survive
  • why not?
  • upwards of 50 nations in first few years (United
    States in 1988)

the text
  • 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
  • Article 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
  • Article 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 4 Persons committing genocide or any of
    the other acts enumerated in article III shall be
    punished, whether they are constitutionally
    responsible rulers, public officials or private
  • Article 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 III.
  • Article 6 Persons charged with genocide or any
    of the other acts enumerated in article III 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
  • Article 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 as they consider appropriate for the
    prevention and suppression of acts of genocide or
    any of the other acts enumerated in article III.

Nuremberg and the convention
  • the Genocide Convention broke one of the major
    limitations of at least one crime against
    humanity. For the convention entirely detaches
    genocide from the requirement at Nuremberg of any
    connection with other and bigger crimes. Now, it
    is prohibited on its own. It does not even matter
    if it occurs in the absence of an armed conflict
    it is wrong no matter what the circumstances in
    which it occurs

genocide and Holocaust consciousness
  • return not just of genocide in the 1990s but also
    return of genocide consciousness
  • Peter Novick, The Holocaust in American Life
    (1999) By making the Holocaust the emblematic
    atrocity, have we made resemblance to it the
    criterion by which we decide what horrors command
    our attention? Is the (quite unintended) result
    that horrors which dont meet that criterion seem
    insufficiently dramatic, even a bit boring? Im
    not sure of the answers to these questions. But
    the curious anomaly remains. For many years weve
    been talking about the culpability of bystanders
    and the crime of indifference. And over those
    years very few have thought that our standing by
    in the face of the preventable, in unholocaustal,
    deaths of millions of children annually has any
    connection to the crime of indifference.

war and law
  • war and law, 1850-1950 why different results
    than torture and slavery?
  • the century-long engagement of humanitarianism
    with war left a long-term legacy, shaping
    expectations about what the worst wrongs are and
    what objects humanitarianism is supposed to be
    about, just as it has shaped expectations about
    how to respond.

war and law, contd
  • Marx/Foucault
  • that humanitarianism attempted to master war left
    an important basis for moral reflection and
    action when the problems of war recurred, eg, in
    the 1990s story of the return of genocide.
  • but before and during the 1990s, and today,
    were/are there comparable sufferings that the
    humanitarian imagination, primed and shaped by
    war, wasnt up to seeing and addressing?
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