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INTERNATIONAL LEGAL
ORDER IN THE
CONTEXT OF HUMAN
RIGHTS AND CRIMINAL
LAW
Mian Ali Haider
L.L.B., L.L.M. (Cum Laude) U.K.
INTRODUCTION
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Murder has been a sin since Cain killed Abel,
long before the first attempts by lawyers to
codify penal law, before the Hammurabi and
other ancient codes.
More fundamentally, murder is a crime by virtue
of natural law, which is prior to and superior to
positivistic law.
Crimes against humanity and civilization were
crimes before the British, French and Russian
note condemned the Armenian massacres in
1915.
INTRODUCTION

According to article 38 of the Statute of the
International Court of Justice.
 general principles of law are a principal
source of law.
 Not only positivistic law –
 not only treaties, protocols and charters –
 but also the immanent principles of law are
sources of law before the ICJ and can be
invoked.
PRINCIPLES OF LAW
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These are basic principle of justice and of common sense.
“ex injuria non oritur jus”
 which lays down the rule that out of a violation of law no new law
can emerge and no rights can be derived.
“ubi jus, ibi remedium”
 where there is law, there is also a remedy, in other words, where
there has been a violation of law, there must be restitution to the
victims
“Thief cannot keep the fruits of the crime”
“The law must be applied in good faith, uniformly, not selectively”.
Thus, there is no international law à la carte
This principle was reaffirmed by the Permanent Court of
International Justice in its famous judgement in the Chorzow Factory
Case in 1928
International Legal Order in the
Context of Human Rights and
Criminal Law
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Domestic Remedies
Methods of International Enforcement
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Pre-Nuremberg
Nuremberg
Modern Tribunals
International Criminal Court
Sources of International Law
Domestic Remedies
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Who is in power?
Who has the power?
Who has jurisdiction?
Who has the right?
Whose law applies?
Why Domestic Remedies Will
Not Work for Certain Crimes
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Genocide
Terrorism
Crimes of Aggression
War Crimes
Trafficking in People, etc…
-- All stem from political power, not
individual action--
The Armenians
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In 1915 the Turkish government presided
over the killing by firing squad, bayoneting,
bludgeoning, and starvation of nearly 1
million Armenians.
Efforts to bring the Turkish leaders to
justice after World War I fizzled and set
the stage for later atrocities in Europe.
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“It was knowingly and lightheartedly that
Genghis Khan sent thousands of women
and children to their deaths. History sees
in him only the founder of a state…. The
aim of war is not to reach definite lines but
to annihilate the enemy physically. It is by
this means that we shall obtain the living
space we need. Who today still speaks of
the massacre of the Armenians?”
Hitler, August 1939
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One week later the Germans invaded
Poland and began the extermination of the
Polish Jews, Roma and undesirables.
By the end of World War II, some 6 million
Jews and 5 million Poles, Roma,
Communists and other undesirables had
been slaughtered.
Nurnberg (Nuremberg)
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Nazi leaders tried for four crimes:
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Conspiracy to Commit Wars of Aggression Against
Independent Sovereigns
Crime Against Peace – AGGRESSIVE WAR
War Crimes - MURDER AND ILL-TREATMENT OF
CIVILIAN POPULATIONS OF OR IN OCCUPIED
TERRITORY AND ON THE HIGH SEAS; and
DEPORTATION FOR SLAVE LABOR AND FOR
OTHER PURPOSES OF THE CIVILIAN
POPULATIONS OF AND IN OCCUPIED
TERRITORIES
COUNT FOUR
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MURDER, EXTERMINATION, ENSLAVEMENT,
DEPORTATION, AND OTHER INHUMANE
ACTS COMMITTED AGAINST CIVILIAN
POPULATIONS BEFORE AND DURING THE
WAR
PERSECUTION ON POLITICAL, RACIAL, AND
RELIGIOUS GROUNDS IN EXECUTION OF
AND IN CONNECTION WITH THE COMMON
PLAN MENTIONED IN COUNT ONE
Included only acts from the date of the invasion
of Poland in 1939.
How did it Begin?
There is no one reason the genocide began, rather it is due
to many historical and social changes in Rwanda over
more than 100 years. These include:
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Tutsi formed the basis of the government, urged on by
colonial rule, until the early 1960s, when a Hutu
government came to power. After years of being
portrayed and treated as inferior to the Tutsi, the Hutu
used the distinctions already in place to demote the Tutsi
to second class citizens.
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During the 1970s, a massacre of Hutu by the Tutsi
occurred in the neighbouring country of Burundi.
Thousands of Hutu refugees came to Rwanda, while
thousands of Tutsi left for neighbouring Uganda, altering
the power balance in Rwanda [4].
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The Genocide Convention
First UN Convention, adopted December 9, 1948;
entry into force 12 January 1951
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“any of the following acts committed with the
intent to destroy, in whole or in part, a national,
ethnical, racial, or religious group, such as:
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Killing members of the group;
Causing serious bodily or mental harm to members of
the group;
Conditions of life calculated to bring about the
physical destruction of the group;
Measures intended to prevent births within the group;
Forcibly transferring Children away from the group.
Major Genocides Since 1948
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Cambodia: Over 2 million in 3.5 years
Iraq:
Over 200,000 Kurds by gas and
chemical attacks in 1989-90
Bosnia and Kosovo – Over 100,000 Muslims
massacred
Rwanda – Almost 1 million, mostly hacked to
death
Many others
Major International Treaties
Specific to International Criminal
Law
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Genocide Convention 1948 (US ratification 1988)
Dec. 10, 1948 Universal Declaration of Human Rights, detailing
human rights and fundamental freedoms (Statement of principles, not
a treaty)
Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes Against Humanity; 26 November 1968, entry into
force 11 November 1970 (no US)
Principles of international co-operation in the detection, arrest,
extradition and punishment of persons guilty of war crimes and crimes
against humanity; Adopted by General Assembly resolution 3
December 1973
Rome Statute of the International Criminal Court
International Bill of Human
Rights
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Universal Declaration of Human Rights
International Covenant on Economic, Social and
Cultural Rights (1966/1976; US signed 1977)
International Covenant on Civil and Political
Rights (1966/1976; US 1992)
Optional Protocol to the International Covenant
on Civil and Political Rights (1966/1976; no)
Second Optional Protocol to the International
Covenant on Civil and Political Rights, aiming at
the abolition of the death penalty (1989/ -- / no)
Selected International Treaties
on Conduct
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International Convention on the Elimination of All Forms of Racial
Discrimination (1965 /1969 US 1994)
Convention on the Elimination of All Forms of Discrimination against
Women (1979 /1981 US signed 1980)
Convention on the Rights of the Child (1989 /1990 US signed 1995)
Optional Protocols on armed conflict and prostitution/pornography
ratified by US 2002
Slavery Convention (1926 / 1955 US signed 1956)
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984 / 1987 US 1994, no to OP)
http://www.unhchr.ch/html/intlinst.htm
The Crime of Genocide
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Article 5 of the statute took the definition of “genocide”
verbatim as it was defined in Genocide Convention (1948).
“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:
 Killing members of the group;
 Causing serious bodily or mental harm to members of the
group;
 Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or
in part;
 Imposing measures intended to prevent births within the
group;
 Forcibly transferring children of the group to another group.
GENOCIDE IS…
To simplify this definition
“genocide is organised and unilateral mass
killing on the basis of ethnicity.” [2]
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THEORIES OF GENOCIDE
Genocide as Social Control - Bradley Campbell
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This theory suggests genocide belongs to a part of social
life that incorporates law and gossip, aspects of society
that are used to control and manipulate. Campbell
assumes that genocide is organised, lethal, unilateral
and involves collective liability [6].
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Cultural distance must be present between the groups
involved and society should be organised along “ethnic
lines, where there is a higher degree of ethnic
visibility”[7]. This creates unequal statuses between
groups, convincing citizens one group is evil and must
be destroyed in order to preserve the society.
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THEORIES OF GENOCIDE
Genocide as Transgression – Dan Stone
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Stone suggests that genocides stem from the creation of
“ecstatic communities based on a radical form of social
inclusion” [8], where societies need to use up their
excess energy, releasing it as an act of catastrophic
violence.
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Tensions already within society reach their peak, urged
on by the government’s validation of extreme actions, to
the point where a collective euphoria results in an event
that is a transgression from the normal functioning of
society.
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STAGES OF GENOCIDE
“Genocide is a process that develops in eight stages that are
predictable but not inexorable. At each stage, preventive measures
can stop it. The later stages must be preceded by the earlier stages,
though earlier stages continue to operate throughout the process”.
The eight stages of genocide are:
Classification
Organization
Extermination
Symbolization
Polarization
Denial
Dehumanization
Preparation
CLASSIFICATION:
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All cultures have categories to distinguish
people into "us and them" by ethnicity, race,
religion, or nationality: German and Jew, Hutu
and Tutsi. Bipolar societies that lack mixed
categories, such as Rwanda and Burundi, are
the most likely to have genocide.
SYMBOLIZATION
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We give names or other symbols to the
classifications. We name people "Jews" or "Gypsies",
or distinguish them by colors or dress; and apply
them to members of groups. Classification and
symbolization are universally human and do not
necessarily result in genocide unless they lead to the
next stage, dehumanization. When combined with
hatred, symbols may be forced upon unwilling
members of pariah groups: the yellow star for Jews
under Nazi rule, the blue scarf for people from the
Eastern Zone in Khmer Rouge Cambodia.
DEHUMANIZATION:
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One group denies the humanity of the
other group. Members of it are equated
with animals, vermin, insects or diseases.
Dehumanization overcomes the normal
human
revulsion
against
murder.
ORGANIZATION:
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Genocide is always organized, usually by the state,
though sometimes informally (Hindu mobs led by local
RSS militants) or by terrorist groups. Special army units
or militias are often trained and armed. Plans are made
for genocidal killings.
POLARIZATION:
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Extremists drive the groups apart. Hate groups
broadcast polarizing propaganda. Laws may forbid
intermarriage or social interaction. Extremist terrorism
targets moderates, intimidating and silencing the center.
PREPARATION:
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Victims are identified and separated out because of
their ethnic or religious identity. Death lists are drawn
up. Members of victim groups are forced to wear
identifying symbols. They are often segregated into
ghettoes, forced into concentration camps, or
confined to a famine-struck region and starved.
EXTERMINATION:
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Extermination begins, and quickly becomes the mass
killing legally called "genocide." It is "extermination" to
the killers because they do not believe their victims to be
fully human. When it is sponsored by the state, the
armed forces often work with militias to do the killing.
Sometimes the genocide results in revenge killings by
groups against each other, creating the downward
whirlpool-like cycle of genocide.
DENIAL:
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It is among the surest indicators of further genocidal
massacres.
The perpetrators of genocide dig up the mass graves,
burn the bodies, try to cover up the evidence and
intimidate the witnesses.
They deny that they committed any crimes, and often
blame what happened on the victims. They block
investigations of the crimes, and continue to govern until
driven from power by force, when they flee into exile.
There they remain with impunity, like Pol Pot.