The Erga Omnes Obligation to Prevent and Prosecute Gross Human Rights Violations with Special Emphasis upon Genocide and Persecution as a Crime Against Humanity

• Jurisdiction: South Africa
• Citation: (2012) African Yearbook on International Humanitarian Law 98
• Date: 22 August 2019
• Author: Mispa Roux
• Pages: 98-133
• Published date: 22 August 2019

98

The Erga Omnes Obligation to Prevent

and Prosecute Gross Human Rights

Violations with Special Emphasis

upon Genocide and Persecution

as a Crime Against Humanity

Mispa Rou x*

1 INT RODUCTION

The universal rev ulsion felt at the atrocities committed by the Nazi

regime during the Holocaust in the Second World War brought about a

turning-point in t he tenets of the international criminal justice system.

For the rst time in history, the International Militar y Tribunal held

at Nuremberg1 prosecuted war cr iminals on the basis of individual

criminality,2 and its Charter (known as the London Charter) also

provided that the ofcial capacity of the per petrators was irrelevant

for purposes of prosecution.3 In numerable acts of savagery committed

by the European Ax is powers that came to light soon after the war

engendered a sense of urgency in the international commun ity not only

to punish perpetrators for their c rimes, but also to impose stringent

obligations on states in an attempt to prevent similar atrocities from

being committed in the f uture.

The Holocaust acts were not criminal ised as ‘genocide’ in the London

Charter, but as ‘persecutions on political, racia l or religious grounds’

* LLB, LLM (I nternational L aw), LLD (Internationa l Law) (UJ); Lecturer in P ublic

Law, University of Johannesburg.

1 The London Char ter of the International Mi litary Tribunal wa s signed on

8 August 1945 by the United States, France, the United K ingdom, Northern Ire land

and the USSR. The p urpose was to prosec ute and punish the main cr iminals of

the European A xis powers for crimes committed du ring the Second World War.

2 Article 6 of the L ondon Charter. Before the Nuremb erg Tribunal, the ‘Laws

of Humanity’ a nd ‘Crimes Against Civ ilisation and Human ity’ were provided

for in international in struments, but the Nure mberg Tribunal was the r st

to prosecute individua ls. See: M Cherif Ba ssiouni Crimes Against Humanit y in

International Cr iminal Law (1999) 60-69; Nina HB Jørgensen Th e Responsibility of

States for Internat ional Crimes (2003) 4-15.

3 Article 7 of the London Char ter.

(2012) African Yearbook on International Humanitarian Law 98

© Juta and Company (Pty) Ltd

THE ERGA OMN ES OBLIGATION 99

under the broader international crime of ‘crimes agai nst humanity’.4

‘Genocide’ was crimina lised only in 1948 by the Convention on the

Prevention and Punishment of the Cri me of Genocide.5 Two main

obligations were imposed on signatory states by Article I of the Genoc ide

Convention, namely to prevent the commission of the international

crime of genocide, and the obligation to punish perpet rators thereof.

Genocide was also not made dependent on any contextual constra ints:

it can be committed in a ‘time of peace or in a ti me of war’.6

Both genocide and crimes against huma nity not only form part of

the ‘most serious crimes of concern to the international communit y

as a whole’,7 but also constitute gross human rights v iolations. ‘Gross

human rights violations’ are international cr imes which form part of

the ‘most serious crimes of concern to the international commun ity as

4 Ibid art 6(c). A possible explanat ion for this is that the ‘term a nd concept of

genocide’ was created only i n 1944 by Raphaël Lem kin in Axis Rule in Occupied

Europe. It only came into common us age a number of years later. It is interesting

to note that the term ‘genocide’ was not used once i n the entire Nurember g

Judgment, although it was used i n the Indictments of the War Crim inals, as well

as mentioned in the Trials. S ee also: ‘Judicial Dec isions: International Mil itary

Tribunal (Nure mberg)’, Judgment and Sentences reprinted in (1947) 41 American

Journal of Internat ional Law 172; Raphaël Lemki n ‘Genocide as a crime u nder

international law’ (1947) 41 American Jour nal of International Law 145 .

5 The Ge neral Assembly approved the Convention on 9 D ecember 1948, and it

entered into force on 12 January 1951. There are 141 Member States of the Ge nocide

Convention, available at <http://treaties.un.org/Pages/ViewDetails.aspx?src=

TREATY&mtdsg_no=IV-1&chapter=4&lang=en> (accessed on 11 January 2 013).

6 Article I of the Convention on the Pre vention and Punishment of the Crime of

Genocide (‘Genocide Convent ion’).

7 Preamble and arts 1 and 5(1) of the Rome Statute of the Internat ional Criminal

Court (‘ICC Statute’ ). See also: Claire De T han and Edwi n Shorts (eds) International

Criminal Law and Human Right s (2003) 9-15; Alexander Orakhela shvili Peremptory

Norms in Internat ional Law (2006) 288-319.

© Juta and Company (Pty) Ltd

100 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

a w hole ’.8 This art icle will only focus upon the international crimes9 of

genocide10 and cr imes against humanity.11

The reason for focusing on persec ution as a crime against humanity

in addition to the crime of genocide is twofold: rst, persec ution

belongs to ‘the same genus a s g en oc id e’. 12 The Trial Chamber of the

International Crimina l Tribunal for the Former Yugoslavia described

the connection between per secution as a crime against human ity and

genocide in the Kupreški´c judgme nt13 as follows:

Both persecut ion and genocide are cr imes perpetrated against persons t hat

belong to a particu lar group and who are targeted becau se of such belonging.

In both categories what matters is the i ntent to discriminate: to attack

persons on account of their et hnic, racial, or religious cha racteristics (as well

as, in the case of perse cution, on account of their political af liation). While

in the case of persec ution the discrim inatory intent can take multifa rious

inhumane forms and ma nifest itself in a plural ity of actions including

murder, in the case of genocide that intent must be accompa nied by the

intention to destroy, in whole or in part, the group to which the v ictims of

the genocide belong. Thus, it can be sa id that, from the viewpoint of me ns

rea, genocide is an ext reme and most inhuman form of persecution. To put

it differently, when persecution esc alates to the extreme form of wilfu l and

8 Ibid.

9 Other international cr imes, such as war crimes and the c rime of aggression, fall

outside the scope of this a rticle.

10 Articles II and III of the Genoc ide Convention. See furt her: William A Schab as

‘G eno cid e’, Max Planck Encyclopedia of Public Int ernational Law Vol IV (2012)

405. The same den ition for ‘genocide’ as provided for in arts I I and III of

the Genocide Convention is followed i n the General Assembly Re solution

96(1) of 1946; art 4 of the Statute of the International C riminal Tribuna l for

the Prosecution of Pe rsons Responsible for Serious Violations of I nternational

Humanitaria n Law Committed in the Territory of t he Former Yugoslavia of 1993

(‘ICTY Statute’); ar t 2 of the Statute of the Internationa l Criminal Tribun al for

Rwanda of 1994 (‘ICTR Statute’ ); art 17 of the Internationa l Law Commission’s

Draft Code of Cr imes against the Peace and Secur ity of Mankind of 1996; art 6

of the Statute of the Internat ional Criminal C ourt of 1998 (‘ICC Statute’); and

art 4 of the Law on the Est ablishment of Extraordinar y Chambers in the Court s

of Cambodia for the P rosecution of Crimes C ommitted during t he Period of

Democratic Kampuc hea of 2004 (‘ECCC Law’).

11 Article 7(1)(h) of the ICC Statute. Perse cution as a crime agai nst humanity has

been dened in a rt 6(c) of the London Charter; prin V I(c) of the ILC Principles of

International Law Recog nised in the Charter of the Nur emberg Tribunal and in

the Judgment of the Tribunal; a rt II(1)(c) of Control Council Law No 10; ar t 5(h)

of the ICTY Statute; a rt 3(h) of the ICTR Statute; art 18(e) of the ILC Draft C ode

of Crimes against t he Peace and Securit y of Mankind; and ar t 5 of the ECCC

Law. However, the denition provided for in a rt 7(1)(h) of the ICC Statute is the

most extensive and offer s the widest protection to victims.

12 ICTY (Tri als Chamb er) The Prosec utor v Kupreški´c et al (Judgment of 14 January 2 000)

Case No IT-95-16-T para 636 p 255. See als o: William A Schabas The Inte rnational

Criminal Court: A Comm entary on the Rome Statute (2 010) 175-18 0.

13 The Kupreški´c judgme nt was conrmed in 20 07 by the International Cour t

of Justice in the Bosnia Gen ocide case. See in th is regard: ICJ Application of the

Convention on the Pre vention and Punishment of the Crime of Gen ocide (Bosnia and

Herzegovina v Serbia and Monte negro) (Judgment of 26 February 20 07) ICJ Reports

(2007) 1 para 188 p 70.

© Juta and Company (Pty) Ltd