Human Rights Definitions
pertinent to the story of Srebrenica
International humanitarian law prohibits indiscriminate attacks. Each party
to an armed conflict must distinguish at all times between combatants and
civilians. Additional Protocol
I to the Geneva Conventions states that the civilian population shall
"enjoy general protection against dangers arising from military operations"
and "shall not be the object of attacks." Protocol
II of the Geneva Conventions, which addresses internal armed conflicts,
does not explicitly distinguish between civilians and combatants. Still, it
prohibits attacking civilians or undertaking acts or threats of violence whose
primary purpose is to spread terror among civilians.
Combatants are all members of the armed forces of a party to the conflict,
except medical and religious personnel. They cannot be punished for
their hostile acts if they respect the rules of international law applicable
in armed conflict. They can only be held as prisoners of war until the
end of hostilities.
Combatants are required to distinguish themselves from the civilian population
while they are engaged in an attack or in a military operation preparatory
to an attack. A combatant has to comply with the rules of international law
applicable in armed conflict.
Combatants who violate the rules of international law do not forfeit their
rights as combatants or as prisoners of war if captured. The exceptions are
when a combatant fails to carry his arms openly a) during each military engagement,
and (b) when he is visible to the adversary while he is engaged in a military
deployment preceding an attack in which he is to participate.
A combatant who falls into the power of an adverse party while failing to
meet these requirements forfeits his right to be a prisoner of war. He is
nonetheless given protections equivalent to those accorded to prisoners of
war by the Third Convention in the case where such a person is tried and punished
for any offences he has committed.
Guerrilla fighters of a party to the conflict are entitled
to combatant status, and therefore to the prisoner of war status, if
they distinguish themselves from civilians by carrying their arms openly
during and before launching an attack. Guerrilla fighters who fail to
do so forfeit their combatant status. They are civilians liable to prosecution
for illegally carrying arms and for any hostile act they may have committed,
but nevertheless entitled to the safeguards accorded to prisoners of
war if and when they are tried and punished.
War crimes committed by subordinates do not absolve superiors from penal
or disciplinary responsibility if they knew or had reason to know that
their subordinates were committing or were going to commit crimes and
failed to stop them.
Command responsibility is part of international customary law. The 1998 statute
of the International
Criminal Court also recognizes command responsibility, stipulating
that a military commander is liable for crimes that he "knew or should have
known" about under circumstances at the time, and only for those crimes committed
by forces under his "effective command and control."
He is liable if he "failed to take all necessary and reasonable measures"
to prevent and repress crimes that subordinates "were committing or about
to commit" or for failing to report such crimes to proper authorities.
Crimes against humanity:
The definition of crimes against humanity overlaps with genocide and
war crimes. Crimes against humanity include murder, extermination, enslavement,
and deportation. Attacks must be widespread (directed against multiple
victims), and systematic (carried out as part of a plan or policy),
rather than isolated instances of criminal conduct. Rape is considered
a crime against humanity if carried out in a systematic and organized
Unlike genocide, crimes against humanity do not require an intent to "destroy
in whole or in part," as cited in the 1948 Genocide Convention. Crimes against
humanity apply only to civilian populations while war crimes can be directed
against armed forces as well. The Nuremberg Charter, which set up the Tribunal
to try Nazi war criminals, required that crimes against humanity be committed
"in execution of or in connection with" war crimes. But it is well established
today that such a link no longer exists.
A series of international instruments adopted after World War II, including
on the Non-Applicability of Statutory Limitations to War Crimes and Crimes
Against Humanity, did not link crimes against humanity to armed conflict.
The Universal Jurisdiction, which recognizes that certain crimes are so serious
that perpetrators can be brought to trial in any country, applies when crimes
against humanity are committed.
The use of force or intimidation to remove people of a certain ethnic
group from an area is a violation of international law. Article 49 of
the Fourth Geneva Convention forbids "individual or mass forcible transfers,
as well as deportations of protected persons from occupied territory
to the territory of the occupying power or that of any other country."
Only protecting the civilian population or "imperative military reasons"
may justify evacuation of civilians in occupied territory. Protocol
II extends this rule to civilians in internal armed conflicts.
It is unlawful to execute an accused person without giving him a fair
trial. He has the right to counsel, to be told of the particulars of
the charge, to prepare a defense, to call witnesses, to have an interpreter,
and to appeal.
Willful killings without judicial process are grave breaches
under the Third Geneva Conventions. If committed against enemy civilians,
they are breaches of the Fourth Geneva Convention.
The Geneva Conventions:
The concept of international humanitarian law was advanced when the Nuremberg
Tribunals of Nazi war leaders developed the notion of crimes against humanity.
It expanded further in 1948 when countries adopted the United Nations Convention
on the Prevention and Punishment of the Crime of Genocide.
The four 1949 Geneva Conventions laid an important foundation for international
humanitarian law, requiring respect for the dignity of people in time of armed
conflict. They dealt with the protection of a specific category of persons
who are not, or are no longer, taking part in hostilities - prisoners of war,
wounded, sick and shipwrecked soldiers and sailors, and civilians.
The two 1977 Additional Protocols to the Geneva Conventions reinforced civilian
protection both in international armed conflict (Protocol I) and in internal
armed conflict (Protocol II).
Recent developments include the creation of ad hoc tribunals
for Rwanda and Bosnia and the adoption of the 1998 Rome statute of the
Criminal Court, which will prosecute individuals for war crimes,
crimes against humanity and genocide. The ICC will enter into effect
once it has been ratified by 60 states. As of May 2001, 30 countries
have ratified the treaty.
The 1948 Convention
on the Prevention and Punishment of the Crime of Genocide defines
genocide as certain acts committed with the intent to destroy, in whole
or in part, a national, ethnic, racial or religious group. The proscribed
acts include killings, serious bodily or mental harm, inflicting on
a people conditions of life calculated to bring about its physical destruction,
imposing measures intended to prevent births within the group, or forcibly
transferring its children to another group. Genocide is a crime under
international law, whether committed in time of peace or war. The convention
establishes individual criminal responsibility as well as state responsibility.
But it has a restrictive intent requirement: The essence of genocide
is not the actual destruction of a group, but the intent to destroy
it. To prove genocide, one must prove the intent to destroy a group.
If that is not possible, the acts committed can still be assessed as
crimes against humanity. The Genocide Convention does not accord criminal
jurisdiction over offenders to every state. Persons charged with genocide
shall be tried by the courts of the state in whose territory the offense
was committed or by an international penal tribunal having appropriate
Imprisonment of civilians:
Since the Nuremberg Trials, customary law has recognized "acts of imprisonment"
as crimes against humanity. The statute of the International
Criminal Court states that "imprisonment or other severe deprivation
of physical liberty in violation of fundamental rules of international
law, if carried out as a widespread or systematic attack on any civilian
population, is a crime against humanity."
A journalist is a civilian whether the conflict is international or
internal. He is entitled to all rights granted to civilians. He can
take notes, record information, take photographs, and shoot film and
A deliberate attack causing the death or injury of a journalist -- or any
other civilian -- is a war crime. It constitutes a serious breach of Article
85 Additional Protocol I. But if a journalist gets too close to a
military unit, he loses the protection due to his profession since that unit
is a lawful military target.
War correspondents accredited by military authorities, as laid down in the
Geneva Convention, are protected in the same manner as non-accredited
journalists: they maintain their civilian status despite the special authorization
received from military sources. Journalists are deprived of their immunity
as civilians if, and for as long as, they take an active part in hostilities.
Prisoners of war:
All members of the armed forces of a party to the conflict and all members
of armed groups under a command responsible to that party have prisoner
of war status in case of capture. Guerillas benefit from the same provisions
only if a state has ratified Additional Protocol II.
Geneva Convention states that prisoners of war must at all times be
treated humanely. It prohibits any unlawful act or omission causing death
or seriously endangering the health of a prisoner of war. Prisoners must receive
any medical care they need and must be protected against acts of violence,
intimidation and insult.
Prisoners of war may not be sentenced to penalties other than those imposed
for the same acts committed by members of the armed forces of the detaining
power. The convention forbids collective punishment for individual acts, corporal
punishment, imprisonment in premises without daylight and, in general, torture
or cruelty in any form.
War crimes are grave breaches of the 1949 Geneva
Conventions and Additional Protocol I as well as acts prohibited
by customary international law. They are defined as willful killing
of civilians, torture or inhuman treatment, and willfully causing great
suffering or serious injury.
War crimes include attacks on civilians or their property, unlawful deportation
or transfer, illegal detention, depriving a protected person of the right
to a fair trial, and the taking of hostages. Rape is not specifically mentioned
as a grave breach to the Geneva Conventions but can be interpreted as a war
crime under "willfully causing great suffering or serious injury to body or
Each state is entitled to try war criminals, including those from among enemy
soldiers. The prevailing view is that all states have universal prosecutorial
jurisdiction. The traditional interpretation of the Geneva Conventions has
been that the "grave breaches" do not apply to internal armed conflicts.
The Geneva Conventions create criminal liability only for violations committed
in international armed conflicts. But recent developments have shown that
it is possible to prosecute war crimes in internal armed conflicts by relying
on special statutes and customary international law. The International Criminal
Court provides that war crimes apply to internal armed conflicts.